(THE FOLLOWING OCCURRED OUT OF THE PRESENCE OF THE JURY):
THE COURT: ALL RIGHT. IN THE WESTERFIELD MATTER THE RECORD WILL REFLECT THE APPEARANCE OF COUNSEL, MR. WESTERFIELD. MEMBERS OF THE PUBLIC AND PRESS ARE HERE.
YOU WANTED TO MAKE A STATEMENT?
MR. FELDMAN: THANK YOU, YOUR HONOR.
TWO OBJECTIONS. WITH REGARD TO THE ARGUMENT AT THIS POINT WE ARE REQUESTING THE COURT ADMONISH THE JURY OR IN THE ALTERNATIVE GRANT A MISTRIAL FOR ARGUING, NUMBER ONE, JEFF GRAHAM IN THE CONTEXT OF VICTIM IMPACT WHICH WE FIND IMPROPER OR WE ARGUE IS IMPROPER.
AND, SECONDARILY, BY THE ARGUMENT THAT’S BEING MADE CONCERNING JENNY NEAL, I’M SORRY, JENNY N., IT’S BEING OFFERED FOR THE PROOF OF THE OFFENSE AND NOT FOR THE SPECIFIC PURPOSE THAT IT WAS ADMITTED. THERE’S BEEN NO RULING FROM THE COURT, 1101(B) TYPE, PERMITTING THE INFERENCES THAT ARE BEING ARGUED. WE THINK IT’S IMPROPER ARGUMENT.
WE REQUEST THE COURT ADMONISH THE JURY TO DISREGARD THOSE ARGUMENTS.
THE COURT: ALL RIGHT.
ANY COMMENTS FROM THE PEOPLE?
MR. CLARKE: JUST AS TO THE JEFF GRAHAM COMMENT, YOUR HONOR. I THINK IT WAS VERY CLEAR THAT WAS IN THE CONTEXT OF THE TYPE OF WORK THAT WAS DONE, THE CIRCUMSTANCES OF THE CRIME UNDER SUBDIVISION (A).
AS TO THE SECOND COMMENT, I THINK MR. DUSEK’S COMMENTS WERE EXTREMELY CLEAR THIS CAME UNDER FACTOR B OF 190.3.
THE COURT: I FIND NOTHING IMPROPER IN THE ARGUMENTS THUS FAR. THE MOTION IS DENIED.
WHILE WE ARE AT IT, MR. DUSEK, I APOLOGIZE FOR INTERRUPTING YOU. I GOT IN A BIND AND HAD TO CHANGE REPORTERS. I DON’T LIKE INTERRUPTING COUNSEL IN AN ARGUMENT.
ALL RIGHT. LET’S GET THE JURORS IN.
(END OF PROCEEDINGS OUT OF THE PRESENCE OF THE JURY.)
THE COURT: ALL RIGHT. WELCOME BACK, LADIES AND GENTLEMEN.
ALL RIGHT, MR. DUSEK.
MR. DUSEK: I TOLD YOU THERE WERE THREE PICTURES CAPSULIZE THIS CASE. ONE WE’VE TALKED ABOUT. THE SECOND PICTURE YOU CAN PROBABLY GUESS. IT’S HIS BED IN THE MOTOR HOME. HE WASN’T DONE WITH HER IN THE HOUSE. AND WE KNOW SHE WAS ALIVE IN THAT MOTOR HOME BECAUSE OF THE FINGERPRINTS AND THE BLOOD. HE TOOK HER THERE TO COMPLETE WHAT HE HAD STARTED IN THE HOUSE, TO FURTHER SATISFY HIS FANTASIES, HIS NEEDS, HIS WANTS.
AS HE’S LOOKING AT HER DID SHE KNOW IT WAS OVER, SHE WAS NEVER GETTING OUT OF THERE. COULD HE SEE THAT IN HER EYES.
WHAT DID SHE KNOW, A SEVEN-YEAR-OLD CHILD. PROBABLY VERY LITTLE. BUT THIS WAS NOT AN EASY DEATH. THIS WAS NOT EASY AT ALL. THIS TOOK A WHILE. BEFORE HE WAS DONE AND HAD TO GET RID OF HER.
WHERE WERE HIS FAMILY VALUES WHILE THIS WAS GOING ON. WHAT HAD HE DONE WITH THEM IF HE EVER TRULY HAD THEM. HOW CAN YOU DO THIS TO A YOUNG CHILD. TAKE HER AND DO THIS. HE COULD HAVE LET HER GO. HE COULD HAVE LET HER GO. BUT HE CHOSE NOT TO.
THE THIRD PICTURE, THE TRILOGY WE HAVE, WHAT DO YOU THINK IT IS. WHAT DO YOU THINK THE THIRD PICTURE IS. IT’S WHERE THE CRIME STARTED. THAT’S WHAT MAKES HIM SO EVIL. IF WE MUST PROVE HE’S THE WORST OF THE WORST, THAT’S WHAT TAKES HIM WAY BEYOND THE EDGE. HE TOOK HER OUT OF HER OWN BED IN HER OWN HOUSE, AWAY FROM HER BLANKET, HER STUFFED TOYS, HER SECURITY, HER INNOCENCE, HER FAMILY. THIS WAS TRULY AN INNOCENT VICTIM IN ALL THAT THAT WORD CAN MEAN. TRULY INNOCENT. AND HE TOOK HER OUT OF THERE SOMEHOW AND ALMOST GOT AWAY WITH HIS.
YOU LOOK AT THAT BEDROOM AND WHAT IT MUST REPRESENT TO A SEVEN-YEAR-OLD CHILD. HER TOYS THERE, HER CLOTHING, EVERYTHING THAT SHE HOLDS DEAR. HER JOURNAL. SHE’LL NEVER, EVER BE ABLE TO COMPLETE THAT JOURNAL. THERE ARE NO MORE CHAPTERS COMING. NO MORE CHANCES TO EXPLAIN, TO ENLIGHTEN, TO SHARE YOUR IDEAS BECAUSE OF WHAT HE DID TO HER. ALL FOR HIS PLEASURE, TO FULFILL HIS FANTASIES, HIS WANTS, WHICH YOU WILL HEAR ABOUT WHEN I’M DONE. WHAT HE CONTINUES TO WANT.
DANIELLE VAN DAM HAD A HUGE FOOTPRINT PUT OVER HER. IT STOMPED OUT HER LIFE. HIS FOOTPRINT. HER BROTHERS HAD A HUGE FOOTPRINT PUT RIGHT IN THE MIDDLE OF THEIR LIVES. THEY WILL NEVER KNOW THEIR SISTER. HOW LONG WILL IT BE UNTIL THEY FORGET THE CHRISTMAS TRIP TO DISNEYWORLD. HOW LONG WILL IT BE UNTIL THEY FORGET THE SOUND OF HER VOICE. WILL THEY EVER FORGET. WILL DEREK EVER FEEL, ACCEPT THE FACT THAT HE COULDN’T STOP THIS, THAT HE COULDN’T HAVE PREVENTED IT. THAT’S WHAT HE HAS TO LIVE WITH.
THE SCHOOL, THE TEACHERS. WE’VE TALKED ABOUT THAT. FOOTPRINTS ALL OVER THEIR LIVES. IT’S NOT RIGHT.
THE COMMUNITY THAT HE DAMAGED, THE HURT THAT HE CAUSED, THE FEAR THAT HE CAUSED. FOOTPRINTS ALL OVER EVERYTHING. YOU LOOK AT THOSE PICTURES AND YOU SEE HOW MANY PEOPLE WERE HURT BY HIS CONDUCT, BY WHAT HE DID.
AND THE PARENTS. THE MOTHER AND FATHER OF SEVEN-YEAR-OLD DANIELLE VAN DAM. THE PAIN WILL NEVER GO AWAY. WHAT HE DID TO THEIR FAMILY, THEIR LIVES, IT WILL NEVER GO AWAY. THEY THOUGHT THEY HAD A NEIGHBOR TWO DOORS DOWN WHO THEY CAN TRUST, WHO THEY WOULD WAVE AT, SELL COOKIES TO. HOW DO THEY CONTINUE TO GO HOME AND DRIVE BY HIS HOUSE. HOW DO THEY DO THAT. THEY CAN’T STAY THERE. NOBODY COULD. THAT CONSTANT REMINDER, GOING TO WORK, COMING HOME, GOING TO THE STORE, GOING TO SCHOOL. YOU’VE GOT TO GO RIGHT BY THE HOUSE OF THE MAN WHO KILLED THEIR SEVEN-YEAR-OLD CHILD. AND THEN WHEN THEY GET HOME, THEY HAVE TO WALK BY DANIELLE’S BEDROOM. HOW DO THEY DO THAT.
THEY HAVE TO DECIDE BECAUSE OF WHAT THE DEFENDANT DID WHAT ARE WE GOING TO DO WITH HER CLOTHING. WHAT DO WE DO WITH IT. THE PICTURES ON THE WALL, THE TOYS, THE JEWELRY, WHAT DO WE DO WITH THAT BECAUSE OF WHAT HE TOOK FROM US.
THEY HAD TO ARRANGE A FUNERAL. NO THIRTY-SIX-YEAR-OLD PARENT, THIRTY-NINE-YEAR-OLD PARENT SHOULD EVER HAVE TO DO THAT. AND WHAT PROBABLY WILL LAST FOREVER WILL BE THE CONSTANT REMINDER THAT THEY GET FROM EVERYBODY THAT THEY RUN INTO. UNKNOWINGLY THAT THEY RUN INTO. WHAT’S YOUR NAME. WHAT’S YOUR NAME. DO YOU HAVE ANY KIDS. HOW MANY KIDS DO YOU HAVE. WHAT’S THE ANSWER. WHAT IS THE ANSWER THAT THEY GIVE THOSE PEOPLE. YOU SAW WHAT WE HAD HERE IN COURT WHEN WE ASKED THEM ON THE STAND. HOW MANY KIDS DO YOU HAVE, DID YOU HAVE. AND WE KNOW THE ANSWER. ALL OF THESE PEOPLE WHO WILL BE INTRODUCING THEMSELVES, TALKING TO THEM, ASKING THEM INNOCENT QUESTIONS. A CONSTANT REMINDER OF WHAT DAVID WESTERFIELD DID TO THEIR LIFE. MORE IMPORTANTLY, WHAT HE DID TO DANIELLE VAN DAM.
I DO NOT STAND BEFORE YOU AND ASK YOU TO PUNISH HIM BECAUSE OF THE PAIN AND SUFFERING EXPERIENCED BY EVERYONE WE’VE HEARD FROM. I DO NOT ASK YOU TO DO THAT. I ASK YOU TO PUNISH HIM BECAUSE OF WHAT HE DID AND THE PAIN AND SUFFERING HE CAUSED. THERE IS A DIFFERENCE. HE IS RESPONSIBLE FOR THIS CRIME. HE IS RESPONSIBLE FOR WHAT HE DID. HE IS THE ONE WHO SHOULD BE PUNISHED BECAUSE HE IS THE ONE WHO TOOK WHAT HE WANTED.
THERE’S ONE LAST AREA, AND THAT RELATES TO THE VIDEO WE SAW JUST A COUPLE DAYS AGO. WHEN WE WATCHED THAT VIDEO AND SAW DANIELLE, THERE WERE PROBABLY MOMENTS THAT STRUCK EACH OF US A LITTLE DIFFERENTLY. PERHAPS THE PHOTOGRAPH OF YOUNG DANIELLE ON HER MOTHER’S CHEST. OR PERHAPS THE PHOTOGRAPH OF YOUNG DANIELLE NEXT TO HER BEAMING FATHER. BUT THE ONE THAT STRUCK ME AND PERHAPS WILL STRIKE YOU BECAUSE OF WHAT WE’RE HERE FOR IS THE LAST ONE. THE LAST IMAGE WE SAW ON THAT VIDEO. DANIELLE DOWN AT DISNEYLAND I BELIEVE IT WAS. THAT IS THE ONE. WHY. BECAUSE THAT IS WHAT A SEVEN-YEAR-OLD CHILD SHOULD BE DOING. SHE SHOULD BE HAPPY; SHE SHOULD BE SMILING WITH THE BIGGEST SMILE YOU CAN SEE. DISNEYLAND, THE TIME OF HER LIFE. HOLDING HER HAND UP TO THE CAMERA. AND WHY IS THAT IMPORTANT TO THIS CASE. BECAUSE THERE’S ONE LAST PHOTOGRAPH. ONE LAST PHOTOGRAPH THAT WE LOOK AT IN COMPARISON WITH WHAT WE SEE ON THE SCREEN. WHEN WE SEE HER LEFT HAND REACHING OUT IN FRIENDSHIP AND HAPPINESS, IN GLEE, IN JOY, LIKE A SEVEN-YEAR-OLD CHILD SHOULD BE ACTING.
SHE USED HER LEFT HAND TO REACH OUT FOR HELP, FOR SAFETY, TO FIGHT FOR HER LIFE WHEN SHE SLAMMED IT AGAINST THAT WOODEN PANEL NEXT TO THE BED IN HIS MOTOR HOME. THAT WAS HER LEFT HAND THAT SHE TRIED TO SAVE HERSELF WITH. HELP ME. AT LEAST I WILL LEAVE A MESSAGE. THAT IS HOW SHE DIED. THAT IS HOW SHE SHOULD BE.
I HAVE ONE LAST REQUEST BEFORE I SIT DOWN. HOPEFULLY IT WILL BE A SIMPLE ONE. I ASK YOU THAT WHEN YOU RETIRE TO THE JURYROOM, YOU ENTER WITH YOUR MINDS OPEN, AS YOU DID FOR THE GUILT PHASE, AND THAT YOU DISCUSS THIS CASE AND LOOK AT THE LAW. YOU TAKE YOUR TIME. YOU TAKE YOUR TIME BACK THERE. MAKE SURE EVERYONE GETS HEARD, EVERYONE’S VIEW IS CONSIDERED, BECAUSE THIS DECISION IS NO FUN. NO FUN AT ALL.
AND WHEN YOU HAVE TAKEN YOUR TIME AND REACHED YOUR DECISION, AND YOU SHOULD REACH A DECISION, YOU WALK BACK INTO THIS COURTROOM, YOU WALK BACK IN WITH YOUR HEADS HELD UP HIGH. DON’T DROP THEM. HOLD THEM UP. KNOWING THAT YOU DID A GOOD JOB, THAT YOU WERE FAIR AND HONEST AND DECENT, THAT YOU LOOKED AT THE EVIDENCE, ALL OF THE EVIDENCE, AND YOU REACHED THE RIGHT VERDICT. YOU HOLD YOUR HEADS UP. AND WHEN YOU ARE POLLED AND ASKED WHETHER OR NOT THIS IS YOUR VERDICT, YOU HOLD YOUR HEAD UP. YOU LOOK AT HIM. YES, DAVID WESTERFIELD, THAT’S MY VERDICT.
THANK YOU.
THE COURT: LADIES AND GENTLEMEN, I WOULD LIKE TO HAVE THIS MATTER, IF POSSIBLE, IN YOUR HANDS THIS AFTERNOON, SO I INTEND TO TAKE AN ABBREVIATED LUNCH HOUR. WE WILL JUST MAKE IT ONE HOUR AND RESUME AT 1:00 O’CLOCK.
PLEASE REMEMBER THE ADMONITION OF THE COURT NOT TO DISCUSS ANY OF THE EVIDENCE OR TESTIMONY AMONG YOURSELVES OR WITH OTHERS NOR FORM OR EXPRESS ANY OPINIONS ON THE CASE UNTIL IT’S SUBMITTED TO YOU.
HAVE A PLEASANT LUNCH. WE WILL SEE YOU AT THE NORMAL MEETING PLACE AT 1:00 O’CLOCK, PLEASE. 1:00 P.M.
(RECESS, 12:03 O’CLOCK, P.M., TO 1:00 O’CLOCK, P.M.)
THE COURT: WELCOME BACK, LADIES AND GENTLEMEN.
YOU SHOULD KNOW THAT MR. FELDMAN AND MR. BOYCE HAVE DECIDED TO DIVIDE UP THE DEFENSE’ CLOSING ARGUMENT, SO YOU WILL BE HEARING FROM BOTH OF THEM DURING THE COURSE OF THEIR PRESENTATION.
MR. FELDMAN: THANK YOU, YOUR HONOR.
THE COURT: MR. FELDMAN.

MR. FELDMAN: THIS IS REALLY ONE OF THE SADDEST MOMENTS I’VE EVER ATTENDED. WE LISTENED TO THE POWER OF THE EMOTION OF MR. DUSEK’S ARGUMENT, AND IT WAS EXTRAORDINARILY EMOTIONAL. AND IT WAS PITCHED TO YOUR HEARTS. HE USED WORDS LIKE EVIL. EMOTIONAL WORDS. DESIGNED TO GET EMOTIONAL RESPONSES. DESIGNED TO PUSH YOU OFF YOUR OBLIGATION.

REMEMBER, EVERY TIME YOU’VE LEFT THE COURTROOM, EVEN THROUGH THIS PROCEEDING, THE JUDGE HAS TOLD YOU YOU SHALL NOT FORM NOR EXPRESS ANY OPINION UNTIL THE CASE IS FINALLY SUBMITTED. IT’S NOT FINALLY SUBMITTED. SO ALTHOUGH YOU MAY HAVE BEEN TAKEN BY THE POWER OF THE ARGUMENT, BY THE QUALITY OF THE ADVOCACY, THAT’S NOT WHAT THIS IS ABOUT. YOU ARE CALLED UPON TO MAKE A LIFE-OR-DEATH DECISION NOT ON THE BASIS OF THE QUALITY OF ARGUMENTS BUT ON THE BASIS OF THE QUALITY OF THE EVIDENCE AS YOU FIND THE EVIDENCE TO BE.

FOUR MONTHS AGO IT WAS TOLD — I THINK MAY 26TH WE MET, THAT WAS THE VOIR-DIRE PROCESS, AND EACH OF YOU WAS WHAT’S CALLED DEATH-QUALIFIED. YOU COULDN’T SIT ON THIS JURY, YOU COULDN’T — WEREN’T ALLOWED TO SIT ON THE JURY IF YOU HAD A CONSCIENTIOUS OBJECTION ABOUT THE DEATH PENALTY. YOU COULD NOT SIT. SO WE KNOW, AGAIN, NOTWITHSTANDING THE ARGUMENTS OF COUNSEL, THAT YOU WOULDN’T BE HERE UNLESS YOU BELIEVED IN THE DEATH PENALTY. AND SOME OF YOU STRONGLY BELIEVE IN THE DEATH PENALTY. BUT IF THAT WAS THE END OF THE EXERCISE, WE WOULDN’T BE HERE.

YOU TOLD US IN VOIR DIRE, YOU TOOK AN OATH, YOU SAID THE CRIME WOULDN’T BE ENOUGH. I ASKED, AND EACH OF YOU WHO WAS ASKED THE QUESTION SAID IF WE FOUND OURSELVES IN THIS POSITION TODAY, THAT WOULDN’T NECESSARILY BE ENOUGH. AND IN TRUTH, UNDER OUR CONSTITUTION, IT’S NOT ENOUGH, BECAUSE IF IT WERE ENOUGH, THERE WOULD BE NO NEED FOR A PENALTY PHASE. THERE WOULD BE NO NEED FOR A JURY. THERE WOULD PROBABLY BE NO NEED FOR A JUDGE. ONCE THE DECISION WAS MADE, KILL HIM.

THIS IS ABOUT WHAT’S THE RIGHT THING TO DO TO DAVID WESTERFIELD. DON’T KID YOURSELF. GIVE HIM WHAT HE WANTS. THIS MAN EVERY DAY FOR THE REST OF HIS LIFE WILL BE IN A FIVE-BY-EIGHT CAGE. HE WILL NEVER WALK THE STREETS AGAIN. NO MATTER WHAT. YOU GUARANTEED THAT ALREADY. DON’T GIVE HIM WHAT HE WANTS? THAT IS A SUBTLE WAY OF SAYING KILL HIM. WE’VE LEARNED FROM THE QUALITY OF THE ADVOCACY THE WORDS AREN’T USED. DON’T GIVE HIM WHAT HE WANTS EQUALS KILL HIM.

THERE WAS CHEERING IN THE STREETS AT THE VERDICT. OUR COMMUNITY HAS GOT A LUST FOR THE KILLING OF DAVID WESTERFIELD. YOU’VE BEEN OUT IN THE COMMUNITY; YOU KNOW THIS. I’M NOT MAKING THIS UP. NONE OF US HAS EXPERIENCED THIS KIND OF INTENSITY. AS MR. DUSEK SAID, IT AIN’T FUN. NO KIDDING. I FEAR YOU’LL RETURN A VERDICT OF DEATH TO PLACATE THE BLOOD LUST ON THE STREETS OF SAN DIEGO. THAT’S NOT THE RIGHT THING TO DO.

MR. DUSEK TALKED TO YOU ABOUT NO ISSUES WITH REGARD TO THE DEATH PENALTY. IT DOESN’T MATTER WHETHER YOU SUPPORT IT OR WHETHER YOU DON’T SUPPORT IT, YOU GOT TO FOLLOW THE LAW. THERE’S NO QUESTION ABOUT THAT. BUT LET ME POINT OUT TO YOU, PLEASE, RECENT EVENTS. VINCENTE FOX REFUSED TO COME MEET PRESIDENT BUSH BECAUSE THE UNITED STATES HAS A DEATH PENALTY. A MAN NAMED MOUSSAOUI, WHO IS ONE OF THE 9/11 TERRORISTS, IS ON TRIAL ON THE EAST COAST, AND THE COUNTRY GERMANY WON’T GIVE THE UNITED STATES EVIDENCE AGAINST THIS MAN BECAUSE THE UNITED STATES IMPOSES DEATH.

ALL I SAY TO YOU BY THAT IS PLEASE TAKE THIS VERY, VERY SERIOUSLY. THIS IS TRULY IF NOT THE SINGLE-MOST IMPORTANT DECISION YOU’LL EVER MAKE, AMONG THE MOST IMPORTANT DECISIONS YOU’LL EVER MAKE.
TERRIBLY SAD. SAD FOR THE VAN DAMS. WE GRIEVE. TERRIBLE. THERE’S NO EXCUSE. I DON’T STAND BEFORE YOU AND SAY THERE’S AN EXCUSE. THERE’S NO JUSTIFICATION. YOU FOUND THAT. BUT IF THAT WERE ENOUGH, YOU WOULDN’T BE HERE.
WE GRIEVE ALSO FOR DAVID ALAN WESTERFIELD, FOR HIS FAMILY, FOR HIS CHILDREN, FOR FUTURE GENERATIONS, BECAUSE NO MATTER WHAT HE’S DONE IN THE PAST, HE HAS NO FUTURE.

THE PROSECUTION ASKS YOU TO TAKE THAT WHICH IS THE MOST SACRED, LIFE, IN THE NAME OF JUSTICE, IN THE NAME OF VENGEANCE. KILL HIM. WE WANT JUSTICE. KILL HIM. IS THIS JUSTICE. DO TWO KILLINGS JUSTIFY ONE. THE PROSECUTION WANTS YOU TO VOTE DEATH SO THE GOVERNMENT CAN STRAP MR. WESTERFIELD INTO THE DEATH CHAMBER AND INJECT HIM WITH LETHAL WHATEVER AND KILL HIM. AND IN THE MONTHS AND YEARS BETWEEN NOW AND THAT MOMENT THE STATE WILL PREMEDITATE, THE STATE WILL DELIBERATE, THE STATE WILL WEIGH THE PROS AND CONS, THE APPELLATE SYSTEM WILL CONSIDER WHETHER OR NOT THE PREMEDITATION AND DELIBERATION OF THE GOVERNMENT EXCEEDS OR EQUALS THAT WHICH YOU FOUND MR. WESTERFIELD GUILTY OF.

AND, BY THE WAY, YOU WERE NEVER ASKED TO FIND MR. WESTERFIELD GUILTY OF KILLING. REMEMBER. THAT WAS NEVER PRESENTED TO YOU. THE ONLY ISSUE, THE ONLY ISSUE, ACTUALLY THERE WERE TWO THAT WERE PRESENTED TO YOU, WAS DID HE COMMIT THE CRIME OF KIDNAPPING. AND ONCE YOU FOUND KIDNAPPING, UNDER THE FELONY MURDER RULE, YOU DON’T HAVE TO FIND KILLING. IF SHE DIED DURING THE COMMISSION OF A KIDNAPPING, IT’S AUTOMATIC FIRST-DEGREE MURDER. THAT WAS ONE QUESTION YOU HAD TO ANSWER.

THE NEXT QUESTION WAS WHETHER OR NOT MR. WESTERFIELD HAD THE SPECIFIC INTENT TO COMMIT A KIDNAPPING. ONCE YOU FOUND OUT — THE SPECIAL CIRCUMSTANCE WAS FOUND TRUE, AND HERE WE BE. NEVER, THE QUESTION WAS NEVER PUT TO YOU WHO KILLED DANIELLE VAN DAM.
NOW, MR. DUSEK ARGUES HAD TO BE DAVID WESTERFIELD. YOU FOUND BEYOND A REASONABLE DOUBT THAT’S THE CASE. BUT THE INTENSITY OF THE DECISION, THE REQUIREMENTS OF THE LAW PUT IN YOUR HANDS, EMPOWER YOU TO MAKE THE DECISION AS TO WHETHER HE LIVES OR DIES. YOU DECIDE WHAT BURDEN OF PROOF, WHETHER OR NOT MR. DUSEK HAS PROVED TO YOU TO AN ABSOLUTE CERTAINTY THAT THERE’S NO OTHER ALTERNATIVE.
REMEMBER THAT CHART WE SAW IN CLOSING ARGUMENT, HOW MR. DUSEK SAID, AH, THE DEFENSE ONLY PUTS UP REASONABLE DOUBT, BUT THERE’S BEYOND THE POSSIBLE DOUBT AND BEYOND A SHADOW OF A DOUBT. YOU NEED THAT BECAUSE IF YOU HAVE QUESTIONS, YOUR DOUBTS LINGER, THAT’S A REASON NOT TO KILL HIM. MR. BOYCE WILL ADDRESS THAT.

THE LAW SAYS YOU MUST CONSIDER THE BACKGROUND AND CHARACTER OF MR. WESTERFIELD. FOR THREE DAYS, TWO DAYS, THREE DAYS, WE’VE HEARD. MR. DUSEK SAYS I DON’T UNDERSTAND, IT IS A SPLIT-PERSONALITY, IT’S A JEKYLL AND HYDE. KILL HIM FOR THE HYDE. LET HIM LIVE FOR THE JEKYLL. FOLKS, THINK ABOUT IT. JUST STEP BACK. HOW DO WE EXPLAIN THIS. IS THIS TRULY UNDERSTANDABLE. YES, WE’VE GOT A NICE THEORY, WE’VE GOT DYNAMITE POWERPOINT, WE HAVE TERRIFIC TECHNOLOGY, WE GOT LAW ENFORCEMENT, THE SAN DIEGO POLICE DEPARTMENT, SITTING AT COUNSEL TABLE, WE GOT TWO OF THE BEST LAWYERS THE COUNTY OF SAN DIEGO CAN DELIVER TO PRESENT THIS CASE TO YOU. WITH ALL OF THE TECHNOLOGY AND ALL OF THE RESOURCES OF ALL OF THE LAW ENFORCEMENT AGENCIES, BASICALLY THROUGHOUT THE UNITED STATES, YOU SAW THAT, WE HAD FIVE LABORATORIES SCATTERED THROUGHOUT THE UNITED STATES ASSISTING THEM IN GAINING THEIR CONVICTION. I DON’T QUARREL THAT THAT’S APPROPRIATE. BUT DOES THAT MEAN YOU SHOULD VOTE TO KILL DAVID WESTERFIELD. DOES THAT MEAN YOU SHOULD DISREGARD THE EMOTIONAL TESTIMONY. DOES IT MEAN YOU SHOULDN’T CONSIDER HIS CONTRIBUTIONS.
THE CROSS-EXAMINATION OF THE CHARACTER WITNESSES WAS MEAN-SPIRITED. EACH OF THE CO-WORKERS, OH, HE DIDN’T DO THE WORK. YOU MEAN IT WAS JUST AN ASSIGNMENT, HE WAS EARNING A LIVING, HE WAS JUST GETTING PAID. UH-UH. REMEMBER CARMEN GENOVESE. NO, SIR. THAT’S NOT RIGHT. BUT FOR MR. WESTERFIELD WE COULDN’T HAVE DEVELOPED THAT DEVICE. AND IF MY RECOLLECTION SERVES, IT’S THE DEVICE THAT WE LEARNED ABOUT THAT’S IN PRODUCTION AND IT’S AT LEAST HELPED, BENEFITTED MORE THAN A MILLION PEOPLE. ISN’T THAT SOMETHING TO CONSIDER IN DECIDING WHETHER OR NOT TO KILL HIM. AS A CIRCUMSTANCE IN, AS MR. DUSEK WOULD SAY, MITIGATION.

IF WE HAVE A SCALE, OKAY, TAKE THOSE CIRCUMSTANCES IN MITIGATION AND AGGRAVATION AS THE JUDGE HAS TOLD YOU AND YOU WEIGH THEM. AND YOU INDIVIDUALLY DECIDE HOW MUCH WEIGHT TO GIVE TO ANY CIRCUMSTANCE. I DON’T HAVE THE SCALE. I WISH I HAD THE SCALE.

I CAN’T TELL WHETHER OR NOT IN THE BACK YOU CAN SEE ALL OF THE FACTOR K CIRCUMSTANCES. BUT THESE ARE THE CIRCUMSTANCES IN AGGRAVATION AND CIRCUMSTANCES IN MITIGATION THAT ARE COMING TO YOU IN THE JURYROOM TO EVALUATE. THE PRESENCE OF A CIRCUMSTANCE. THE AGE OF THE DEFENDANT. YOU’RE NOT TOLD WHETHER THAT’S AGGRAVATING OR MITIGATING. MR. DUSEK MADE AN ARGUMENT THAT’S AGGRAVATING. ANYBODY THAT’S FIFTY SHOULD KNOW BETTER. THE DEFENSE SAYS TO YOU IN FIFTY YEARS HE’S NEVER DONE ANYTHING. IT’S MITIGATING. THE TRUTH OF THE LAW IS ANY ONE OF YOU CAN TAKE EXACTLY THE SAME CIRCUMSTANCE. ONE CAN SAY IT’S AGGRAVATING; ONE CAN SAY IT’S MITIGATING. AND YOU’RE BOTH RIGHT BECAUSE THERE’S NO ABSOLUTE CORRECT ANSWER.

THE PROCESS REQUIRES YOU TO SEARCH YOUR SOULS. THE PROCESS REQUIRES YOU TO LOOK BEYOND THE EMOTION, BEYOND THE CRIME. EVERY CAPITAL MURDER IS TERRIBLE. THERE’S NO SUCH THING AS A GOOD CAPITAL MURDER. THERE’S NO SUCH THING AS A GOOD CHILD MURDER, A GOOD RAPE MURDER, A GOOD KILLING DURING THE COMMISSION OF A ROBBERY. THERE’S NO SUCH THING.

BUT THERE’S DIFFERENT INDIVIDUALS THAT COMMIT THOSE CRIMES. AND WE KNOW FROM HISTORY, WE KNOW FROM OUR COMMUNITY, WE KNOW FROM OUR NEWSPAPERS THAT IT’S ONLY THE WORST OF THE WORST THAT GET DEATH WHO COMMIT THOSE CRIMES. AND YOU HEARD THOSE WORDS FROM MR. DUSEK. HE IS THE WORST OF THE WORST YOU HEARD. NOT EVEN CLOSE. THIS IS NOT A MAN WITH AN INSTITUTIONAL BACKGROUND, WHO’S COMMITTED CRIMES IN PRISONS. THIS IS NOT A MAN WHO SPENT A SINGLE DAY IN PRISON. THIS IS NOT A REPEAT OFFENDER.

YOU HEARD MR. DUSEK ARGUE, AH, LET’S TAKE FACTOR B, THE PRESENCE OR ABSENCE OF CRIMINAL ACTIVITY OF THE DEFENDANT, BY THE DEFENDANT, OTHER THAN THE CRIMES FOR WHICH HE’S BEEN TRIED IN THE PRESENT PROCEEDING WHICH INVOLVE THE USE OR ATTEMPTED USE OF FORCE OR VIOLENCE OR THE EXPRESS OR IMPLIED THREAT. AND HE SAID JENNY NEAL WAS A CHILD MOLEST. DID YOU HEAR THAT. DID THAT INVITE YOUR SPECULATION. DID THAT PLAY VERY WELL TO YOUR EMOTIONS. DID THAT CAUSE YOU TO BELIEVE SOMETHING HAPPENED THAT’S NOT PROVED. NOR CHARGED.

AND EVEN IF YOU BELIEVE IT TO BE THE CASE, COUNSEL WANTS YOU TO KILL HIM FOR THAT. EVEN IF YOU FIND IT TO BE TRUE, IT’S JUST ANOTHER CIRCUMSTANCE ON THE SCALE. IT’S JUST ANOTHER CIRCUMSTANCE ON THE SCALE IS THE CRIME. BUT WHEN YOU LOOK AND WHEN YOU INDEPENDENTLY EVALUATE, WHEN YOU INDEPENDENTLY WEIGH THE CIRCUMSTANCES, YOU HAVE THE RIGHT TO SAY WHAT COUNTS AND HOW MUCH IT COUNTS. AND WHEN YOU LOOK TO FACTOR K OR WHEN YOU LOOK TO FACTOR H, I’M SORRY, I, YOU SAY I IS A FACTOR, HERE’S THE SCALE, IT’S NOT LINED UP. I DIDN’T BRING THE PROPS. SORRY. A CIRCUMSTANCE IN MITIGATION.

HIS AGE. HE HASN’T DONE ANYTHING. WE CAN LOOK TO HIS PAST AND SAY THIS IS TERRIFIC. HE’S A GOOD MAN. BUT FOR ONE THREE-DAY WEEKEND OF TERROR. DOES ONE TERRIBLE ACT FORFEIT A LIFETIME WORK. FORFEIT A LIFETIME OF GOOD DEEDS. FORFEIT THE LOVE THAT YOU SAW, THAT WE PRESENTED. YES, IT’S TRUE, WE PRESENTED PEOPLE THAT KNEW MR. WESTERFIELD THROUGHOUT HIS LIFE. AND WE DID THAT BECAUSE WE NEEDED TO SHOW YOU THERE’S ANOTHER SIDE TO THIS MAN THAN THAT WHICH THE PROSECUTION WAS TRYING TO GET YOU TO BELIEVE. YOU ONLY SAW THROUGHOUT THE ENTIRE TRIAL UGLY. YOU NEVER SAW THE GOOD. IT WASN’T PRESENTED.
THIS ISN’T A MAN THAT’S JUST DONE ONE BAD THING HIS WHOLE LIFE AND THAT’S IT. THE INVENTIONS, THE 1,600,000 PEOPLE YOU HEARD TESTIMONY ABOUT THAT HE’S HELPED. YOU CAN CONSIDER THAT AS A CIRCUMSTANCE IN MITIGATION. AND YOU CAN SAY I WEIGH THAT THIS MUCH. AND IF YOU WEIGH THAT THIS MUCH, IT OUTWEIGHS ALL OF THESE.
SO, AGAIN, THE JUDGE IS GOING TO SAY YOU DON’T COUNT, YOU DON’T DECIDE ONE IS GREATER THAN THE OTHER. YOU DECIDE WHAT THE WEIGHT IS, UNDERSTANDING ALL CRIMES LIKE THIS ARE TERRIBLE. OF COURSE. IN OUR SYSTEM OF JUSTICE, IN OUR COMMUNITY, I SAY TO YOU TAKE THE HIGH ROAD. THE HIGH ROAD IN THIS CASE IS LIFE. IT’S NOT ANOTHER KILLING. IT’S HARDLY WHAT DAVID WESTERFIELD WANTS, TO BE CAGED FOR THE REST OF HIS LIFE, TO NEVER SEE THE LIGHT OF DAY.
DID YOU WAKE UP THIS MORNING; DID YOU SEE THE SUNRISE. IT WAS A BEAUTIFUL SUNRISE. IT REALLY WAS, TRULY, A BEAUTIFUL SUNRISE THIS MORNING. I SAW IT. A LITTLE BIT OF PRESSURE ON THE LAWYERS, WE’RE UP A LITTLE BIT EARLIER THAN USUAL. I SAW THE SUNRISE. AND I THOUGHT THIS MAN NEVER AGAIN WILL SEE THAT SUN RISE. GUARANTEED. DON’T, DON’T THINK HE HASN’T OR ISN’T GETTING PUNISHED. HE IS.
WHAT’S WORSE. A MAN THEORETICALLY A MIDDLE-CLASS, SUCCESSFUL INDIVIDUAL WHO’S GOT AS MR. DUSEK PUT IT I THINK THE BEST OF EVERYTHING, HE GREW UP IN A NORMAL ENVIRONMENT, EVERYTHING, EVERYTHING, JUST LIKE ANY OF US, TO BE JERKED UP AND THROWN INTO A CAGE AND MAYBE LET OUT FOR AN HOUR EVERY DAY FOR THE REST OF HIS LIFE, EVERY SINGLE DAY. NO MORE SUNRISES. NO MORE SUNSETS. NO MORE DINNERS HERE, DINNERS THERE. NO MORE, GEE, I WANT TO GO FOR A WALK. GEE, I WANT TO PLAY, I WANT TO WATCH TELEVISION, I WANT TO DO ANYTHING. HE’S CAGED FOREVER. YOU GUARANTEED IT.
THIS CATEGORY OF CRIME IMPOSES THE SEVEREST PUNISHMENT THAT THE AMERICAN LAW PROVIDES. IT’S THE SEVEREST PUNISHMENT THAT CALIFORNIA PROVIDES. LIFE WITHOUT POSSIBILITY OF PAROLE OR DEATH. WHAT’S WORSE. YOU HAVE CONDEMNED DAVID WESTERFIELD FOR SURE. OF THAT YOU CAN BE CERTAIN. YOU DON’T NEED TO WORRY ABOUT THAT. IF YOU’RE CONCERNED ABOUT COMMUNITY PROTECTION, IT’S GONE. EVERY TIME HE’S COME IN THE COURTROOM, LOOK AT OUR SECURITY. HE’LL NEVER WALK AGAIN, HE’LL NEVER TAKE A STEP AGAIN OUTSIDE THIS COURTROOM OUT OF CHAINS AND SHACKLES. EVER AGAIN. NEVER. MR. DUSEK SAYS THAT’S NOT ENOUGH. WE NEED TO KILL HIM. WE NEED TO LOAD THE NEEDLE; WE NEED TO STRAP HIM ON A GURNEY; WE NEED TO TAKE THAT NEEDLE, AND WE NEED TO KILL HIM. LIKE A DOG.

I SAY TO YOU A SOCIETY IS JUDGED ON THE BASIS OF HOW IT TREATS ITS WORST, NOT ON THE BASIS OF HOW IT TREATS ITS BEST. NOBODY ON THE FACTS OF THIS CASE WITH THIS MAN’S BACKGROUND HAS THIS COMING. THE WORST OF THE WORST. I SAY TO YOU IN ORDER TO IMPOSE THE DEATH PENALTY, YOU MUST FIND DAVID WESTERFIELD TO BE THE WORST OF THE WORST. YOU MUST BE ABSOLUTELY CERTAIN, AND YOU MUST FIND THIS CRIME TO BE THE WORST OF THE WORST. AND WHEN YOU CONSIDER DAVID WESTERFIELD ON THAT ISSUE, THINK ABOUT TED BUNDY, A SERIAL RAPIST AND MURDERER, PEOPLE LIKE CHARLES MANSON, JOHN WAYNE GACEY, JEFFREY DAHMER. THESE ARE NAMES IN THE NEWS. THESE ARE PEOPLE WHO HAVE KILLED MANY, MANY PEOPLE. DAHMER WAS A CANNIBAL. THIS MAN IS NOT THE WORST OF THE WORST. THE DEATH PENALTY IS RESERVED FOR THE WORST OF THE WORST.

COUNSEL WANTS YOU TO KILL MR. WESTERFIELD BECAUSE OF THE CRIME, BUT THE LAW DOESN’T PERMIT YOU TO DO THAT. YOU CONTINUE TO HAVE THE OBLIGATION THAT THE LAWYERS DON’T HAVE. YOU HAVE TO BE OBJECTIVE. YOU HAVE TO BE EXERCISING YOUR RATIONAL JUDGMENT. IF YOU ALLOW YOUR EMOTIONS TO OVERCOME YOU, THE RIGHT DECISION WON’T BE MADE.

THE WORST OF THE WORST? THE BOSTON STRANGLER. THE SON OF SAM. SAME CATEGORY? NO. MULTIPLE HOMICIDES? NO.
DAVID WESTERFIELD HAS FORFEIT HIS LIFE. THAT’S FOR SURE. HE BOUGHT HIMSELF A CAGE FOR THE REST OF HIS LIFE. THAT’S REALLY SAD. YOU KNOW, THIS CASE IS JUST A COMPLETE TRAGEDY. IT’S A TRAGEDY IN OUR COMMUNITY. IT’S A TRAGEDY IN THE FAMILIES. IT’S A TRAGEDY IN THE FAMILIES. IT’S A TRAGEDY TO ALL OF US. WE WILL NEVER, EVER BE THE SAME. OUR CITY WON’T EVER BE THE SAME. OUR COUNTRY. IF BY ACCIDENT YOU’VE CAUGHT SOME OF THE NEWS, SUDDENLY — OR YOU’RE DRIVING HOME, AND YOU SEE THE AMBER, IT’S CALLED AMBER ALERTS, NOW SUDDENLY YOU’RE DRIVING HOME NOW INSTEAD OF SEEING I-5 IS CLOGGED, YOU’RE SEEING SOMEBODY IS MISSING, X, Y, Z. WE ARE NEVER GOING TO BE THE SAME. KILLING DAVID WESTERFIELD WON’T RESOLVE THAT. THAT’S NOT THE ANSWER.

THE PRESENCE OR ABSENCE OF A FELONY CONVICTION. THAT’S C. THIS IS WHY I THINK THAT’S IMPORTANT. IT LETS YOU LOOK BACK OVER A MAN’S ENTIRE LIFE, A WOMAN’S, ANYBODY’S ENTIRE LIFE. IT GIVES YOU A FIFTY-YEAR PERSPECTIVE. IF THERE WAS ANYTHING, ANYTHING COMPETENT THERE, YOU KNOW THESE PEOPLE WOULD HAVE PRESENTED IT. IF THERE WAS SOMETHING THAT WAS COMPETENT OUT THERE, YOU WOULD HAVE HEARD IT. YOU DIDN’T HEAR IT BECAUSE IT’S NOT THERE. SO THAT CIRCUMSTANCE IN MITIGATION TAKES ON MORE WEIGHT ON THE SIDE OF LIFE NO MATTER HOW YOU BALANCE IT.
ANOTHER REASON PRIOR CONVICTION OF A FELONY IS AN IMPORTANT CONSIDERATION IS BECAUSE IT’S SAID THE BEST PREDICTOR OF FUTURE BEHAVIOR IS PAST BEHAVIOR. I THINK THAT’S A FAIR STATEMENT. IF SOMEBODY HAS DONE SOMETHING IN THE PAST, YOU CAN MAYBE PREDICT, ALTHOUGH PREDICTING IS PRETTY DIFFICULT, THAT THEY ARE GOING TO DO IT AGAIN. NOT IN THIS CASE. UNLESS YOU TAKE THE SPIN WHERE ONCE AGAIN THE PROSECUTION HAS ABUSED THE WESTERFIELD FAMILY, THIS TIME IT WAS THE NIECE TO TESTIFY AGAINST POOR NEAL WESTERFIELD. YOU HEARD AGAIN THE SCANDALOUS REMARK THAT DAVID WESTERFIELD CLAIMED HIS SON DID SOMETHING. YOU HEARD THE ARGUMENT. REMEMBER. THE EVIDENCE, THE UNCONTRADICTORY EVIDENCE, MARCUS LAWSON LOOKED AT THE BOOKS, THE EVIDENCE WAS PRESENTED. SOMEHOW IN ORDER TO INFLAME YOU, TO PREJUDICE YOU, TO GET YOU TO THINK DAVID IS TRYING TO SHIFT THE BLAME TO HIS SON, WHICH IS A RIDICULOUS, ALMOST OBSCENE NOTION, YOU HEARD IT AGAIN. IT WASN’T TRUE THE FIRST TIME HE SAID IT. IT DOESN’T BY REPETITION BECOME TRUE THE SECOND TIME OR THE THIRD OR THE FOURTH TIME.

AND THE CROSS-EXAMINATION OF NEAL WESTERFIELD THIS MORNING. OH. DID HE TEACH YOU ABOUT THE PORN. OBJECTION SUSTAINED. NOW THINK ABOUT THE QUESTION. WHERE IS THE PITCH. WHAT’S HE AFTER. HE WANTS TO INFLAME YOU BECAUSE HE KNOWS IF YOU’RE ANGRY ENOUGH KILLING IS EASIER. SO I CAN ONLY SAY TO YOU, PLEASE, THE LAWYERS HAVE THE BURDENS AND THE EMOTIONS. WE PRESENT TO YOU, WE ARE ADVOCATES. YOU SAW THE QUALITY OF THE ADVOCACY THIS MORNING. SLICK. GOOD. GOT US. IT WAS POWERFUL. BUT IT’S ADVOCACY. HE’S GOT A JOB TO DO. YOU THINK HE WOULD COME IN HERE IN A CAPITAL CASE AND SAY, AH, HE SAID IT, I HEARD THIS, THE DEFENSE IS GOING TO SAY HE’S NOT THE WORST OF THE WORSE, USE SYMPATHY. DO YOU THINK — OR DEFENSE LAWYERS ALWAYS SAY THAT. DO YOU THINK PROSECUTORS OR THIS PROSECUTOR IN PARTICULAR WOULD COME IN AND SAY, HEY, AFTER ALL OF THIS, ON SECOND THOUGHT, I DIDN’T REALIZE HE BENEFITTED A MILLION, SIX HUNDRED THOUSAND PEOPLE. I DIDN’T REALIZE THAT HE MADE SUCH A CONTRIBUTION IN THE MILLERS’ CHILDREN THAT IT LITERALLY CHANGED THEIR LIFE. I DIDN’T REALIZE HE WAS SUCH A GOOD MAN TO HELP THAT FAMILY. I DIDN’T REALIZE HE DID SO MUCH FOR HIS CHILDREN. ON SECOND THOUGHT, SPARE HIM. THAT’S NEVER GOING TO HAPPEN. HE’S AN ADVOCATE.

THE SYSTEM IS ADVERSARY. WE FUNCTION IN A CONSTITUTIONAL DEMOCRACY IN AN ADVERSARY SYSTEM. THAT MEANS THEY ARE THE PROSECUTORS. THEIR JOB, IF THEY CAN DO IT, IS TO CONVINCE YOU BEYOND A REASONABLE DOUBT KILL HIM. NO, NO, NO. I SAID THAT WRONG. THERE’S NO BURDEN OF PROOF. I’LL SAY TO YOU YOU HAVE TO BE ABSOLUTELY CERTAIN. THEY SAY TO YOU KILL HIM, PERIOD. YOU HEARD. HE SAID YOU DON’T EVEN HAVE TO FIND IT BEYOND A REASONABLE DOUBT. YOU JUST DECIDE.
DAVID WESTERFIELD AS A MATTER OF OUR CONSTITUTION, OUR LAWS, AND YOUR GOOD GRACES GETS INDIVIDUALIZED CONSIDERATION. ALL WE ASK IS AN INDIVIDUALIZED DETERMINATION OF DAVID WESTERFIELD. NOT BIAS, NOT PREJUDICE, NOT EMOTION. AN INDIVIDUALIZED CONSIDERATION OF THIS MAN’S LIFE.
AS A MENTOR, AS A PERSON WHO’S GOT ACCOMPLISHMENTS, AND NOT AS A PERSON THAT THE DISTRICT ATTORNEY’S OFFICE IS SEEKING TO DEMONIZE BY CLAIMING FOR THE FIRST TIME IN A PENALTY PHASE HE ENGAGED IN SOME ACT OF MOLESTATION ON A NIECE WHO COULDN’T EVEN REMEMBER CLEARLY WHAT HAPPENED. YOU’LL REMEMBER THAT THE JUDGE GAVE YOU SOME PRIOR INSTRUCTIONS WITH REGARD TO WHETHER OR NOT A WITNESS WAS DISHONEST ON A PRIOR OCCASION. THAT’S SPECIFIC TO JENNY N. BECAUSE SHE TESTIFIED, WELL, I DIDN’T REALLY TELL THE TRUTH IN THE BEGINNING. WELL, FIFTEEN YEARS LATER HOW IS IT A PERSON’S MEMORY GETS BETTER. ARE WE TO BELIEVE FIFTEEN YEARS LATER SOMETHING THAT WAS NEVER REPORTED, NEVER SPOKEN ABOUT, NO BEHAVIOR CHANGE, SUDDENLY IT’S TRUE. AND AGAIN COUNSEL WANTS YOU TO BELIEVE IT. HE WANTS YOU TO BELIEVE THAT IT’S SUCH A STRONG FACTOR IN AGGRAVATION YOU SHOULD KILL HIM.

ONE WHO HAS A RELATIVELY BLAMELESS LIFE AND CONTRIBUTED TO HIS FAMILY AND SOCIETY, WHO COMMITS A SINGLE GRAVE TRANSGRESSION DOES NOT DESERVE DEATH BUT TO REMAIN IN PRISON FOR THE REST OF HIS LIFE. THE PUNISHMENT. WHAT’S HE GOT. HE’S DEAD. HE’S DEAD TO SOCIETY. THERE’S NO QUESTION. HE’S KILLED. THAT’S FOR REAL. HE’S NOT PHYSICALLY DEAD, FOLKS. HE’S NOT PHYSICALLY DEAD. HE’S GOING TO THE CAGE, WHETHER IT’S ON DEATH ROW OR SOMEWHERE ELSE, TO THINK ABOUT THE TREATMENT THAT CHILD KILLERS GET IN PRISON.
MR. DUSEK: OBJECTION. IMPROPER ARGUMENT, YOUR HONOR.
THE COURT: SUSTAINED.
LET’S MOVE ON.
MR. FELDMAN: THINK ABOUT THE PREJUDICE THAT’S BEEN SPUN OUT FROM THE PROSECUTION’S SIDE ABOUT CHILD KILLERS, HOW HE’S TRYING TO CLAIM THAT THAT ACT SOMEHOW IS DIFFERENT THAN THE KILLING OF AN OLD PERSON, AN OLDER PERSON, OR SOMEONE ELSE AS HE PUTS IT WHO’S INNOCENT. BECAUSE ANY CAPITAL MURDER INVOLVES THAT. THIS IS NO DIFFERENT.
TO THIS MAN LIFE WITHOUT POSSIBILITY OF PAROLE IS A WORSE PUNISHMENT THAN MOST WHO APPEAR IN THESE COURTS BECAUSE MOST WHO APPEAR IN THESE COURTS HAVE PRIOR CONVICTIONS. THE PROSECUTION’S ABLE TO BRING IN THE THREE-STRIKERS WHO’VE KILLED SOMEBODY, WHO ARE DOING LIFE ALREADY, AND ROLL IN THE TESTIMONY ABOUT THEIR PRIOR CONVICTIONS FOR ROBBERY, ABOUT THEIR PRIOR MISDEEDS IN PRISONS.

THIS MAN, NO MATTER WHAT HE DOES, HE’S GONE. DOESN’T MATTER. YOU CAN’T CHANGE THE VERDICT. NOTHING YOU DO, NOTHING YOU DO CHANGES THE VERDICT. SO WE KNOW AND WE LEARNED THIS MORNING TO THE HEARTBREAK OF HIS CHILDREN, HE’LL NEVER WALK THE STREETS WITH GRANDCHILDREN, HE’LL ATTEND NO WEDDINGS, HE’LL HAVE NO ABILITY TO TRAVEL. BUT THE PROSECUTION SAYS TWO KILLINGS JUSTIFY THE KILLING OF ONE. NO. NO. NO. YOU HAVE TWO CHOICES. YOU CAN DECIDE THAT HE’LL BE KILLED BY THE EXECUTIONER OR THAT HE’LL DIE AT GOD’S HAND. REGARDLESS, EVERY DAY FOR THE REST OF THIS MAN’S LIFE HE’LL SPEND IN PRISON. HE’LL SPEND IN A CAGE. NO MATTER WHAT YOUR DECISION.
YOUR RESPONSIBILITIES, YOU ARE THE POWER OF TWELVE, YOU ARE THE GROUP OF TWELVE, BUT YOU’RE ALSO THE POWER OF ONE. ANY ONE OF YOU WHO BELIEVES DEATH IS NOT APPROPRIATE KEEPS OPEN THE EXECUTIONER’S DOOR. NO QUESTION. IF ANY OF YOU BELIEVES LIFE IS APPROPRIATE, HE DOES NOT DIE. YOU HAVE TO SEARCH YOUR SOULS. YOU KNOW WHAT’S RIGHT INTERNALLY FOR YOU. I CAN’T TELL YOU THAT. I CAN TELL YOU THIS: WE PRESENTED A COMPELLING CASE FOR LIFE.
A TERRIBLE, TERRIBLE CRIME HAS OCCURRED IN OUR COMMUNITY. THERE’S NO EXCUSE. THERE’S NO EXCUSE. BUT WHAT YOU SAW, IF YOU LOOK BACK ON ANY OF YOUR LIVES, I JUST — I THOUGHT, OKAY, WOULD I BE PROUD OF A LIFE LIKE THAT. I THINK SO. CONTRIBUTIONS. INVENTIONS. HELPING PEOPLE. BEING REMEMBERED. BEING REMEMBERED AS SOMEBODY THAT’S CARING, TAKING CARE OF KIDS. LOVING. RESPECTING FAMILY VALUES. THESE ARE GOOD THINGS. IT MAKES NO SENSE WHEN YOU COMPARE IT AGAINST WHAT HAPPENED IN THIS CASE. IT DOESN’T MAKE SENSE. NO MATTER HOW YOU EVALUATE THE EVIDENCE, THIS DOESN’T MAKE SENSE. WHEN YOU LOOK AT THIS MAN’S PERSONALITY, WE’VE BEEN THINKING ABOUT THIS FOR MONTHS, MAKE SENSE OF IT. YOU CAN’T. IT DOESN’T MAKE SENSE. THAT’S NOT A REASON TO KILL.
SO JUSTICE AND A DEATH SENTENCE AREN’T THE SAME. BECAUSE WE’VE GOT JUSTICE. JUSTICE IN THIS CASE IS LIFE WITHOUT POSSIBILITY OF PAROLE OR DEATH. THE LAW DOESN’T FAVOR ONE OR THE OTHER. YOU HEARD IN THE INSTRUCTIONS THAT DEATH IS MORE SEVERE, BUT UNDER THE CIRCUMSTANCES OF THIS CASE YOU CERTAINLY CAN CONSIDER AND SHOULD CONSIDER THE SEVERITY OF LIFE WITHOUT POSSIBILITY OF PAROLE.
YOU WERE TOLD, I WAS WATCHING, MR. DUSEK WAS RIGHT, THE LAWYERS ARE CONSTANTLY PAYING ATTENTION TO YOU FOLKS. I’M SURE YOU’RE LOOKING OUR WAY, BUT WE’RE SURE LOOKING YOUR WAY. WHEN THE JUDGE WAS READING THE INSTRUCTIONS, HE TALKED ABOUT HOW YOU COULD CONSIDER THE REACTION OF THE KIDS. AND HE SAID YOU CANNOT CONSIDER THE — ANY SYMPATHY YOU MAY HAVE OF THE CHILDREN OR THE FAMILY OF MR. WESTERFIELD. AND I THINK I HEARD THAT ARGUED HERE. BUT IF YOU LOOK AT THE INSTRUCTION, THE JUDGE ALSO SAID EVIDENCE OF THE IMPACT OF THE EXECUTION ON FAMILY MEMBERS SHOULD BE DISREGARDED UNLESS, UNLESS IT ILLUMINATES SOME POSITIVE QUALITY OF THE DEFENDANT’S BACKGROUND OR CHARACTER. WELL, WHAT ABOUT HIS BACKGROUND. HE’S A GOOD FATHER. WHAT ABOUT HIS CHARACTER. HE WAS A LOVING FATHER. HE TOOK HIS KIDS. HE MOVED THEM FROM POINT A TO POINT B. HE TOOK HIS DAUGHTER LISA TO SOFTBALL. HE WAS A SOCCER COACH. ON THE SIDE OF LIFE.
EVERY WITNESS YOU CAN SAY EMPOWERS YOU TO EVALUATE IT AS A CIRCUMSTANCE IN MITIGATION. SO THAT BY THE TIME YOU GET DONE WITH YOUR COMPARISON, YOU WILL SEE, YES, YES, IT’S AN AGGRAVATED CRIME. YES. THERE’S NO EXCUSE. I DON’T STAND BEFORE YOU AND EXCUSE IT. BUT THE CIRCUMSTANCES IN MITIGATION SIGNIFICANTLY AND SUBSTANTIALLY OUTWEIGH ANY CIRCUMSTANCE IN AGGRAVATION.
THOMAS JEFFERSON SAID UNTIL THE INFALLIBILITY OF MAN IS PROVEN TO ME, I WILL NOT FAVOR THE PENALTY OF DEATH BECAUSE MISTAKES CAN BE MADE. A HUNDRED AND ONE PEOPLE HAVE BEEN RELEASED FROM DEATH ROW —
MR. DUSEK: OBJECTION. IMPROPER ARGUMENT.
THE COURT: SUSTAINED.
MR. FELDMAN: PUBLIC.
THE COURT: NO, I WILL NOT ALLOW IT. PROCEED, MR. FELDMAN.
MR. FELDMAN: WE KNOW THAT THERE ARE REVERSALS IN THE CRIMINAL JUSTICE SYSTEM.
MR. DUSEK: OBJECTION. IMPROPER ARGUMENT, YOUR HONOR.
THE COURT: SUSTAINED.
MR. FELDMAN: SO NOW YOU’RE SEEING SOMETHING ELSE I’M CONCERNED ABOUT. IT MATTERS WHETHER THE LAWYERS RETAIN CREDIBILITY WITH THE JURY. THE DISTRICT ATTORNEY’S ENTITLED TO MAKE AN OBJECTION. THE JUDGE CALLS THEM THE WAY HE SEES THEM. I’M NOT QUARRELING WITH THAT. MY CONCERN IS THAT SOMEHOW YOU MAY THINK I’VE DONE SOMETHING WRONG BY RAISING THE ARGUMENT. THE JUDGE MAKES HIS RULINGS; THEY’RE LEGAL RULINGS. HE TOLD YOU HE’S THE SHEPHERD; HE DECIDES WHAT’S ADMISSIBLE OR NOT. COUNSEL MAKES OBJECTIONS. SOMETIMES THEY’RE SUSTAINED; SOMETIMES THEY’RE NOT. BUT THE LAWYERS DO THIS JOB, AND I HAVEN’T DONE ANYTHING WRONG. AND I WANT TO BE SURE NONE OF YOU FEEL THAT YOU’RE IN ANY WAY NOT GETTING IT STRAIGHT FROM US. BECAUSE THAT MATTERS. THAT REALLY DOES MATTER. BECAUSE IF YOU STOP LISTENING TO US, IT’S OVER.
AND ONE OF OUR CONCERNS REALLY IS SOME OF YOU HAVE ALREADY STOPPED LISTENING. SOME OF YOU HAVE ALREADY DECIDED. THE CRIME IS TERRIBLE. I COULD SEE THAT THAT HAPPENS. I KNOW THAT PEOPLE MAKE THEIR MINDS UP. I KNOW PEOPLE TRY, AND I HAVE FAITH THAT YOU DO LISTEN TO THE JUDGE’S ADMONITIONS. I HAVE FAITH THAT YOU TAKE YOUR JOB SERIOUSLY. I HAVE FAITH THAT YOU TAKE CONSCIENTIOUSLY YOUR DUTIES. SO WHEN THE JUDGE TELLS YOU IF AN OBJECTION IS SUSTAINED, YOU CAN’T CAST — IT DOESN’T CAST BLAME ONE WAY OR ANOTHER. WE’RE JUST DOING THE BEST WE CAN.
LET ME ASK YOU THIS: IMAGINE YOU CAME BACK INTO THE COURTROOM AND YOU SAID DEATH AND DAVID WESTERFIELD WENT BOOM AND HAD A HEART ATTACK. WHAT DO YOU THINK WOULD HAPPEN. WELL, YOU KNOW WHAT WOULD HAPPEN. THE MARSHALS WOULD GET ON THE PHONE. NINE-ONE-ONE WOULD BE CALLED RIGHT NOW. THEY WOULD ZIP RIGHT OVER. THEY WOULD DO EVERYTHING THEY COULD TO REHABILITATE HIM, TO KEEP HIM ALIVE. DOES THAT MAKE SENSE. IT’S HOW OUR SOCIETY IS. BECAUSE WE WANT TO SAVE HIM FOR THE RITUAL OF THE EXECUTIONER.
DEATH IS NOT JUSTICE IN THIS CASE. PLEASE DON’T BE SWAYED BY PUBLIC OPINION. IT’S OUT THERE, FOLKS. IN ME I HAVE THIS FEAR THAT IT’S SO MUCH EASIER FOR YOU TO GO OUT IN THE STREETS AND — NOT FAIR — AND SAY WE VOTED DEATH. AND THE MOBS WILL APPLAUD. WAY TO GO. GOOD JOB.
ONE OF THE MORE DISGUSTING IMAGES WAS THE CHEERS ON THE STREET ON YOUR LAST VERDICT. THE COMMUNITY IS INFLAMED. WHAT YOU DO IS BEING WATCHED. AND IT MAKES ME CONCERNED THAT IF YOU BELIEVE LIFE IS THE RIGHT THING TO DO THAT YOU MAY BE DISINCLINED TO VOTE FOR LIFE BECAUSE OF THE CONCERN THAT THE COMMUNITY MIGHT DISAGREE. AND THE JUDGE JUST INSTRUCTED YOU THAT THAT’S NOT SOMETHING YOU CAN CONSIDER. YOU CANNOT CONSIDER PASSION, PITY — I’M SORRY. YOU CAN IN THE PENALTY PHASE CONSIDER PITY FOR MR. WESTERFIELD, BUT YOU CAN’T CONSIDER PUBLIC OPINION. AND IN MY HEART OF HEARTS MY CONCERN IS THAT YOU’RE ALL IN A POSITION WHERE IT’S EASIER TO VOTE DEATH THAN IT IS TO VOTE LIFE. NOT ON THE FACTS OF THE CASE BUT BECAUSE OF WHAT WE SEE EVERY TIME YOU LOOK OUT TO THE RIGHT AND THE LEFT AND THE STREETS. AND YOU ALL KNOW WHAT IT’S LIKE OUTDOORS. YOU’VE HAD TO LITERALLY BE MOVED TO AN AREA TO BE PROTECTED, TO BE INSULATED BECAUSE YOU COULDN’T GET PRIVACY.
THIS IS NOT A CASE AS MR. DUSEK HAS TOLD YOU, THERE’S THINGS HE’S NEVER GOING TO KNOW, HE CAN’T PROVE. WHERE ANYBODY CAN HAVE A COMFORT LEVEL ON A DEATH VERDICT IT SAYS, WELL, WE DO IT BECAUSE WE KNEW WHAT HAPPENED. WE DID IT BECAUSE WE KNEW WHAT HAPPENED, THAT IT WAS THE RIGHT THING TO DO. MR. DUSEK TOLD YOU IN CLOSING ARGUMENT, FOLKS, TAKE YOUR BEST GUESS OR IT’S NOBODY CAN GUESS WHAT HAPPENED. HIS WORD. GUESS. YOU CAN’T GUESS WHEN IT COMES TO MATTERS OF LIFE AND DEATH. THAT IS NOT THE RIGHT THING TO DO.
IN YOUR QUESTIONNAIRES SOME TALKED ABOUT AN EYE FOR AN EYE. I’M NOT MUCH ON THE BIBLE. BUT I HAVE TO TELL YOU I WENT TO GENESIS, AND I LOOKED, AND I SAW CAIN AND ABEL.
MR. DUSEK: OBJECTION. IMPROPER. RELIGION.
THE COURT: OVERRULED.
MR. FELDMAN: I’M NOT GOING TO RELIGION.
THE COURT: I DON’T BELIEVE THAT’S THE ANALOGY. OVERRULED.
YOU MAY CONTINUE.
MR. FELDMAN: THANK YOU.
THIS IS NOT A RELIGIOUS PROPOSITION. THIS IS AN ALLEGORY. AND IN GENESIS CAIN KILLED ABEL. AND THE PUNISHMENT, THE PUNISHMENT, GOD BRANDED ABEL — CAIN WITH A BRAND, LIKE THE SCARLET LETTER, A BRAND, SO THAT WHEN HE WALKED THE STREETS EVERYONE WOULD KNOW THE WORD IN THE BIBLE IS NOT TO SMITE HIM, MEANING NOT TO KILL HIM, FOR KILLING HIS BROTHER. AND SO THAT ALLEGORY REALLY TELLS YOU THAT AT LEAST IN GENESIS WHERE BROTHER KILLED BROTHER, GOD’S PUNISHMENT WAS LIFE WITHOUT POSSIBILITY OF PAROLE. IT WAS BANISHMENT. BANISHMENT.
THE EASY THING AND THE POPULAR THING IS TO KILL MY CLIENT. I KNOW IT. MEN AND WOMEN WHO DO NOT THINK WILL APPLAUD. THE CRUEL AND THE THOUGHTLESS WILL APPROVE IT. IT WILL BE EASIER TODAY, BUT I THINK OF TOMORROW. I KNOW YOU, THE JURY, STAND BETWEEN DAVID ALAN WESTERFIELD AND THE EXECUTIONER, BETWEEN THE PRESENT AND THE FUTURE. I AM PLEADING FOR LIFE, UNDERSTANDING, CHARITY, KINDNESS, AND MERCY. I KNOW THAT IS THE WAY OF THE FUTURE BECAUSE I KNOW THAT A VOTE FOR LIFE IS A VOTE FOR HUMAN UNDERSTANDING. IT’S A VOTE TO TEMPER JUSTICE WITH MERCY.
WHEN YOU DISCUSS THIS CASE WITH YOUR GRANDCHILDREN OR YOUR CHILDREN, THEY WILL LISTEN. TALK TO THEM ABOUT THE POWER YOU WERE GIVEN IN THIS CASE. TALK TO THEM ABOUT YOUR ABILITY TO IMPOSE LIFE OR DEATH. TELL THEM ABOUT THAT POWER, HOW SERIOUSLY YOU TOOK IT. AND WHEN THEY LOOK TO YOU AND ASK YOU WHAT HAPPENED, TELL THEM I CHOSE LIFE. IT WAS THE RIGHT THING TO DO IN THAT CASE. I CHOSE LIFE.
THANK YOU.
THE COURT: ALL RIGHT.
MR. BOYCE.
MR. BOYCE: THANK YOU, YOUR HONOR.
THIS IS HARD, LADIES AND GENTLEMEN. IT’S HARD FOR ALL OF US. AND IT’S NO FUN. IT’S HARD FOR YOU BECAUSE YOU HAVE TO DECIDE BETWEEN TWO TERRIBLE PUNISHMENTS: SENTENCING MR. WESTERFIELD TO PRISON FOR THE REST OF HIS LIFE OR DEATH. IT’S HARD FOR US. IT’S HARD FOR ME BECAUSE I CAN SEE HOW EASY IT WOULD BE FOR YOU TO BE AUTOMATIC, TO AUTOMATICALLY IMPOSE THE DEATH PENALTY FOR THE CRIME.
THERE ARE A LOT OF PEOPLE THAT CAME THROUGH HERE IN JURY SELECTION. THERE WERE A LOT OF PEOPLE THAT TOLD US BECAUSE OF THEIR BELIEFS, AN EYE FOR AN EYE, BELIEFS IN THE DEATH PENALTY, THAT THEY WOULD AUTOMATICALLY IMPOSE THE DEATH PENALTY IF THEY CONVICTED MR. WESTERFIELD AND FOUND THE SPECIAL CIRCUMSTANCE TRUE. AND THOSE PEOPLE COULD NOT SIT ON THIS JURY. BUT THAT’S NOT YOU. BECAUSE YOU HAVE PROMISED US, YOU PROMISED THIS COURT WITH YOUR OATH THAT YOU WERE NOT AMONG THEM. YOU PROMISED US WITH YOUR OATH THAT YOU WOULD NOT BE AUTOMATIC. YOU PROMISED US WITH YOUR OATH THAT YOU WOULD CONSIDER EVERYTHING ABOUT MR. WESTERFIELD, EVERYTHING THAT WE PRESENTED IN THIS CASE.
AND THE LAW TELLS YOU YOU SHALL, NOT YOU MAY, BUT YOU SHALL CONSIDER, YOU SHALL BE GUIDED BY EVERYTHING THAT WE PRESENTED ABOUT MR. WESTERFIELD. AND THE REASON THE LAW DOES THAT IS BECAUSE A PERSON THAT HAS MADE POSITIVE CONTRIBUTIONS IN HIS LIFE, A PERSON THAT HAS MADE AND DONE GOOD THINGS THROUGHOUT HIS LIFE, IS NOT THE WORST OF THE WORST. AND THAT IS WHO THE DEATH PENALTY IS DESIGNED FOR.
I WANT TO — I WANT TO EMPHASIZE, THOUGH, BECAUSE THIS IS WHAT THE PROSECUTION’S ARGUMENT DID, IT ASKED YOU TO COMPARE THE CRIME WITH EVERYTHING WE PRESENTED ABOUT MR. WESTERFIELD. EVERYTHING WE PRESENTED WE DID NOT INTEND TO JUSTIFY THE CRIME. EVERYTHING WE PRESENTED WE DID NOT INTEND AND DID NOT EXCUSE THE CRIME. EVERYTHING WE PRESENTED IN NO WAY MINIMIZED THE CRIME. AND EVERYTHING WE PRESENTED DID NOT EXPLAIN THE CRIME. BECAUSE YOU HAVE EVERYTHING WE KNOW ABOUT MR. WESTERFIELD. EVERYTHING GOOD. WE HAVE A TERRIBLE CRIME OVER HERE. AND THE TWO ARE NOT RECONCILABLE.
I WANT YOU TO HOLD THAT THOUGHT FOR A MOMENT BECAUSE YOU CAN CONSIDER ANY RESIDUAL, ANY LINGERING DOUBT YOU MAY HAVE IN DECIDING PENALTY IN THIS CASE. AND THE FIRST TIME, THE FIRST TIME YOU HEARD ABOUT LINGERING DOUBT WAS FROM HERE. REMEMBER DURING THE GUILT PHASE IN CLOSING ARGUMENTS WHEN WE TOLD YOU, WHEN WE EXPLAINED TO YOU WHAT PROOF BEYOND A REASONABLE DOUBT MEANS. WE SAID IT’S THE HIGHEST STANDARD THAT WE HAVE IN A CRIMINAL CASE. IT’S WAY UP HERE. AND MR. DUSEK GOT UP AND TOLD YOU, NO, THE LAW DOESN’T REQUIRE US TO PROVE GUILT BEYOND ANY DOUBT, TO A HUNDRED-PER-CENT CERTAINTY. IT’S NOT WAY UP HERE; IT’S DOWN HERE. WE’RE ONLY REQUIRED TO PROVE GUILT BEYOND A REASONABLE DOUBT. WE CAN’T PROVE IT BEYOND ALL POSSIBLE DOUBT BECAUSE SOMEBODY’S ALWAYS GOING TO SAY WHAT ABOUT THIS, WHAT ABOUT THAT. WHAT MR. DUSEK WAS TALKING ABOUT, THOSE ARE RESIDUAL, LINGERING DOUBTS. AND YOU CAN CONSIDER ANY LINGERING DOUBTS YOU MAY HAVE IN DECIDING PENALTY.
AND I WANT YOU TO REMEMBER THE DOUBTS THAT WE TALKED TO YOU ABOUT DURING GUILT PHASE, ABOUT THE GUILT, THE DOUBTS ABOUT ACCESS, THE DOUBTS ABOUT THIRD PARTY, SOMEBODY ELSE, THE DOUBTS ABOUT — ABOUT MOTIVE. THE DOUBTS ABOUT THE SCIENCE. YOU HAVE THE D.N.A. AND YOU’VE GOT THE FINGERPRINTS OVER HERE. AND YOU’VE GOT THE ENTOMOLOGY OVER HERE. THIS DOES NOT TELL YOU WHEN, IT DOESN’T TELL YOU HOW LONG. BUT WITH THIS WE CAN TELL YOU WHEN. WE COULD TELL YOU HOW LONG. THOSE TWO ARE NOT RECONCILABLE.
BUT I WANT YOU, I WANT YOU NOT TO FORGET ABOUT THAT, BUT TO PUT IT ASIDE. AND I WANT YOU TO THINK ABOUT LINGERING DOUBT IN TERMS OF WHO DAVID WESTERFIELD IS. EVERYTHING WE KNOW ABOUT DAVID WESTERFIELD. I WANT YOU TO THINK ABOUT IT IN TERMS OF THE CRIME. AND I WANT YOU TO THINK ABOUT IT IN TERMS IS THE PROSECUTION’S THEORY, WHAT THE PROSECUTION PRESENTED TO YOU.
WE HAVE DAVID WESTERFIELD, FIFTY YEARS OLD, A SUCCESSFUL CAREER, A HOUSE, A CAR, KIDS, FRIENDS, MATERIAL POSSESSIONS, WORKING EVERY DAY OF HIS LIFE. AND YOU HAVE THE PROSECUTION THEORY THAT THIS MAN ONE NIGHT WENT TO A BAR WITH SOME FRIENDS AND AFTER LEAVING THE BAR DECIDES I’M GOING TO GO TO THE NEIGHBORS’ HOUSE. I’VE NEVER BEEN IN IT BEFORE. IT’S COMPLETELY DARK. I’M GOING TO FIND AN UNOPENED DOOR, AND I’M GOING TO GO FIND A YOUNG GIRL’S BEDROOM, AND I’M GOING TO TAKE THE GIRL AND BRING HER OVER TO MY HOUSE. KNOWING WHAT HE KNOWS. THERE’S A DOG IN THE HOUSE. PROBABLY GOING TO BE SOME TYPE OF REACTION, IF NOT BARKING. HE KNOWS EITHER THE DAD’S HOME OR A BABYSITTER’S HOME. HE EXPECTS THE MOM HOME ANY MINUTE. THE MOM’S GOING TO CHECK ON THE KIDS. ESPECIALLY IF THE BABYSITTER’S HOME. IT DOESN’T MAKE ANY SENSE.
YOU HAVE DAVID WESTERFIELD OVER HERE. YOU HAVE A HORRIBLE CRIME OVER HERE. THE TWO ARE NOT RECONCILABLE. AND YOU CAN CONSIDER ANY DOUBTS THAT THE CIRCUMSTANCES OF THIS CASE RAISES FOR YOU IN DECIDING PENALTY.
BUT LINGERING DOUBT, SOME OF YOU MAY NOT HAVE ANY LINGERING DOUBTS. LINGERING DOUBT IS NOT THE ONLY THING THAT YOU CAN CONSIDER. MORE IMPORTANTLY AND PERHAPS MOST IMPORTANTLY WHAT YOU CAN CONSIDER ARE THE POSITIVE CONTRIBUTIONS THAT MR. WESTERFIELD HAS MADE.
AND THE REASON WHY THE LAW TELLS YOU THAT YOU CAN CONSIDER THOSE CONTRIBUTIONS IS BECAUSE THE DEATH PENALTY IS RESERVED FOR THE WORST OF THE WORST. AND THIS ISN’T ABOUT WHETHER HE WAS PICKING BLUEBERRIES, WHETHER HE HAD A GIRLFRIEND IN HIGH SCHOOL OR WHETHER HE HAD A SIXTH GRADE TEACHER THAT SAID HE BROUGHT HER AN APPLE ONE DAY. THIS IS ABOUT A CONSISTENT PATTERN; THIS IS ABOUT A WHOLE LIFE. THIS ISN’T AN ISOLATED OR A SINGLE INCIDENT.
YOU HEARD EARLIER, NOT JUST IN PENALTY PHASE, BUT YOU HEARD EARLIER, YOU HEARD FROM THE LAS PISAS. REMEMBER THEY WERE THE FRIENDS FROM TREERIDGE, AND THEY DESCRIBED CAMPING TRIPS, THEY DESCRIBED THE FAMILY. THEY DESCRIBED THE IMPACT THAT HE HAD ON THEIR LIVES. YOU ALSO HEARD FROM THE ROEHRS WHO WERE HIS NEIGHBORS IN SABRE SPRINGS. YOU ALSO HEARD FROM PAUL HUNG. YOU ALSO HEARD THE IMPACT THAT HE MADE ON THOSE LIVES, TOO.
AND MORE RECENTLY YOU HEARD FROM THE PEOPLE THAT HE WORKED WITH THROUGHOUT HIS LIFE. YOU HEARD FROM RON LAWRENCE, THE IMPACT THAT HE MADE ON RON LAWRENCE, THAT HE WORKED TOGETHER WITH RON LAWRENCE. NOT ONLY DID HE WORK TOGETHER, BUT HE WAS A FRIEND OF RON LAWRENCE, THAT THEY SOCIALIZED TOGETHER. YOU HEARD FROM CARMEN GENOVESE. DID CARMEN GENOVESE TELL YOU THAT HE JUST WORKED THE JOB. HE TOLD YOU THAT MR. WESTERFIELD WAS CREATIVE. HE DESCRIBED HIS TALENT. HE DESCRIBED THE THREE PAT — TWO OF THE THREE PATENTS THAT MR. WESTERFIELD WAS RESPONSIBLE FOR. THE ONE PATENT THAT HELPED PATIENTS RECOVER AFTER SURGERY. THE CONTINUOUS PASSIVE MOTION DEVICE. YOU ALSO HEARD ABOUT THE OTHER PATENT THAT WAS DESCRIBED BY WILLIAM TOWNSEND. REMEMBER WILLIAM TOWNSEND WAS THE MAN WHOSE MOTHER SUFFERED FOR THE LAST YEARS OF HER LIFE BECAUSE HER HANDS WERE CLENCHED IN PAIN BECAUSE OF RHEUMATOID ARTHRITIS IN THE FINGER JOINTS. AND IT WAS MR. WESTERFIELD THAT DESIGNED A SURGICAL IMPLANT THAT EASED THAT PAIN. YOU ALSO HEARD FROM OTHER PEOPLE HE WORKED FOR. YOU HEARD FROM DAVID PETCH. AFTER HE LOST HIS JOB, MR. WESTERFIELD HELPED HIM GET IT BACK.
YOU ALSO HEARD FROM HIS FRIENDS. YOU HEARD FROM THE MILLERS. YOU HEARD FROM THE SONS OF THE MILLERS, A. J. MILLER AND MIKE MILLER, WHO TOLD YOU THAT IN THEIR TEENAGE YEARS WHEN THEY COULDN’T GO TO THEIR PARENTS FOR PROBLEMS, THEY COULD COME TO MR. WESTERFIELD. AND HE HELPED THEM, GUIDE THEM. HE HELPED A. J. MILLER WITH HIS CAREER. THESE THINGS MEANT THINGS TO HIM. HE HELPED MICHAEL MILLER WHEN HE WAS IN LAW SCHOOL. HE GAVE HIM GUIDANCE. HE WAS A SOUNDING BOARD; WHEN THEY HAD PROBLEMS, THEY COULD COME TO HIM. HE WAS A MENTOR. THESE THINGS MEANT A LOT TO THESE PEOPLE. THEY MEANT A LOT TO THE PARENTS OF THESE SONS, TOO.
THEY MEANT A LOT TO THE HILLS. HE ONLY WORKED WITH MR. HILL FOR A YEAR AND A HALF, BUT THEY WERE LIFETIME TRENDS. AND IT MEANT A LOT TO THE OTHER FRIENDS THAT HE HAD IN HIS LIFE. IT MEANT A LOT TO PEG HENNON. SURE, SHE CAME IN HERE WITH THE EARRINGS THAT HE GAVE HER WHEN HE WAS SEVENTEEN YEARS OLD, WHEN SHE WAS SEVENTEEN. SHE REMEMBERED HIM THROUGHOUT HER LIFE BECAUSE OF THE IMPACT HE HAD ON HER LIFE. AND, SURE, DANIELLE WAS FOUND WITH EARRINGS, TOO.
NOTHING’S GOING TO BRING DANIELLE VAN DAM BACK. BUT THAT’S NOT WHAT THIS IS ALL ABOUT. THIS IS NOT AN EXCUSE FOR THE CRIME. THIS IS NOT TO JUSTIFY THIS CRIME. THIS IS ABOUT MR. WESTERFIELD, WHETHER HE’S THE WORST OF THE WORST. HE HAD AN IMPACT ON THESE PEOPLE’S LIVES, JUST LIKE HE HAD AN IMPACT ON ALL HIS FAMILY MEMBERS. JUST LIKE YOU HEARD DESCRIBED FROM HIS SON, FROM HIS DAUGHTER. YOU HEARD FROM HIS AUNTS, HOW HE HELPED HIS GRANDMOTHER. AND THE LIST GOES ON AND ON.
YOU HEARD FROM PEOPLE WHO ONLY HAD CONTACT WITH HIS CHILDREN. YOU HEARD THE LADY THAT CAME IN THAT DIDN’T KNOW DAVID WESTERFIELD VERY WELL, BUT SHE KNEW THE INTERACTIONS THAT HE HAD WITH HIS SON. HIS SON WAS A GOOD FRIEND OF HER CHILD AT THAT SAME AGE. YOU HEARD FROM ALL THESE PEOPLE THAT WERE CLOSE TO HIM. YOU HEARD FROM HIS SISTER TANIA AND THE LASTING RELATIONSHIP THAT THEY HAD AS A BROTHER AND A SISTER. SHE LOST HER FATHER. SHE LOST HER OTHER BROTHER. AND SHE’S LOST DAVID, TOO. SHE CAN ONLY VISIT HIM WHEN HE’S IN A CELL, WHEN HE’S IN A CAGE. AND HE’S LOST HER. HE’S LOST HIS CHILDREN, TOO. HE CAN’T VISIT THEM WHENEVER THEY WANT TO BE VISITED OR WHENEVER HE WANTS TO VISIT THEM.
DON’T SHUT THESE PEOPLE OUT. LISTEN TO THEM. NOT JUST WHAT THEY HAVE TO SAY, NOT JUST THE WORDS THEY SAY, NOT JUST WHAT HE HAS DONE FOR THEM OR WITH THEM, BUT BY TELLING YOU THESE THINGS, WHAT HE MEANS TO THEM.
THE DEATH PENALTY IS NOT DESIGNED FOR THIS DEFENDANT, FOR DAVID WESTERFIELD. IT’S DESIGNED FOR THE WORST OF THE WORST. AND NOT ONLY DID YOU HEAR THAT DAVID WESTERFIELD WAS NOT THE WORST OF THE WORST FROM HIS FRIENDS, FROM HIS NEIGHBORS, FROM HIS FAMILY, FROM THE PEOPLE HE WORKED FOR AND WITH, YOU ALSO HEARD IT FROM AN UNLIKELY SOURCE. YOU HEARD THAT DAVID WESTERFIELD WAS NOT THE WORST OF THE WORST FROM THE PROSECUTION, FROM MR. DUSEK. BECAUSE YOU REMEMBER IN OPENING STATEMENT, AND HE REPEATED IT HERE, DON’T GIVE DAVID WESTERFIELD WHAT HE WANTS. DON’T GIVE THE DEFENDANT WHAT HE WANTS. AND HE MEANS DON’T GIVE HIM LIFE WITHOUT POSSIBILITY OF PAROLE. DON’T GIVE HIM WHAT HE WANTS.
AND USUALLY THAT’S RIGHT. USUALLY THAT APPLIES TO A DEFENDANT IN A DEATH-PENALTY CASE, BECAUSE USUALLY IT’S A PREDATOR THAT IS DOING LIFE IN PRISON ON THE INSTALLMENT PLAN. USUALLY IT’S A CAREER CRIMINAL THAT’S IN AND OUT OF PRISON, THAT PRISON’S NOTHING MORE THAN A REVOLVING DOOR, THAT CAN’T FUNCTION OUTSIDE OF PRISON BECAUSE THEY BECOME SO INSTITUTIONALIZED. BUT THAT’S NOT DAVID WESTERFIELD.
BUT THAT IS THE PERSON THAT MR. DUSEK WAS SPEAKING TO WHEN HE SAID DON’T GIVE HIM WHAT HE WANTS. THAT’S THE TYPE OF PERSON HE WAS SPEAKING TO. THE WORST OF THE WORST. NOT DAVID WESTERFIELD. NOT DAVID WESTERFIELD WHO SPENT FIFTY YEARS BUILDING A REPUTATION. IT’S GONE. WHO SPENT A LIFETIME BUILDING A SUCCESSFUL CAREER THAT’S GONE. WHO HAS A HOUSE, KIDS, A CAR, GONE. WHO FREEDOM MEANT SOMETHING TO. WHO WOULD GO TO THE PARK, THE DESERT, THE BEACH. THAT’S GONE. DAVID WESTERFIELD IS AN OUTDOOR MAN. HE LOVES SPENDING HIS TIME OUTDOORS. HE CAN NO LONGER DO THAT. HE’S NOT THE MAN WHO HAS SPENT HIS ENTIRE LIFE IN A CELL THE SIZE OF A KING-SIZE BED REFLECTING EACH DAY ON YOUR VERDICT BECAUSE HE’S NOT THE WORST OF THE WORST.
EVERY SINGLE LIFE HAS VALUE. EVERY SINGLE LIFE. THAT’S WHY WE’RE HERE. THAT’S WHY WE LOOK SO CLOSELY AT WHAT WE’RE DOING. THAT’S WHY WE HAVE THE DEATH PENALTY ONLY FOR THE WORST OF THE WORST. AND DAVID WESTERFIELD HAS VALUE. YOU HEARD IT FROM ALL THE PEOPLE HE TOUCHED. AND HE WILL CONTINUE TO HAVE VALUE. HE WILL CONTINUE TO BE PRODUCTIVE. HE WILL CONTINUE EVEN IN PRISON BECAUSE HE’S WORKED SINCE HE WAS A TEENAGER. HE’S ALWAYS CONTRIBUTED. HE’S ALWAYS BEEN PRODUCTIVE.
DAVID WESTERFIELD’S LIFE HAS VALUE, AND THE PEOPLE WHO KNEW DAVID WESTERFIELD ARE GOOD PEOPLE. THEY WANTED TO COME HERE AND TELL YOU ABOUT DAVID WESTERFIELD. THEY DIDN’T HAVE TO COME HERE. MOST OF THEM CONTACTED US. THEY WEREN’T SUBPOENAED TO COME HERE. THEY NEEDED TO COME HERE AND TELL YOU ABOUT DAVID WESTERFIELD. AND WHAT THEY SAID WENT BEYOND THE WORDS THEY SPOKE BECAUSE THEY SHARED HIS LIFE, HIS DREAMS, HIS ACCOMPLISHMENTS. THEY CARE ABOUT HIM. THEY LOVE HIM. AND THEY HAVE GIVEN YOU THE REASONS WHY THEY DON’T WANT YOU TO KILL HIM. AND I HOPE YOU WERE LISTENING. I HOPE ALL OF YOU WERE LISTENING.
THE COURT: ALL RIGHT.
LADIES AND GENTLEMEN OF THE JURY, YOU WILL BE PERMITTED TO SEPARATE AT THE NOON AND EVENING RECESSES. DURING YOUR ABSENCE THE JURYROOM WILL BE LOCKED. DURING PERIODS OF RECESS YOU MUST NOT DISCUSS WITH ANYONE ANY SUBJECT CONNECTED WITH THIS TRIAL AND YOU MUST NOT DELIBERATE FURTHER UPON THE CASE UNTIL ALL TWELVE OF YOU ARE TOGETHER AND REASSEMBLED IN THE JURYROOM.
YOU SHALL NOW RETIRE TO DELIBERATE ON THE SUBJECT OF THE PENALTY THAT IS APPROPRIATE IN THIS CASE. THE FOREPERSON PREVIOUSLY SELECTED MAY PRESIDE OVER YOUR DELIBERATIONS OR YOU MAY CHOOSE A NEW FOREPERSON.
IN ORDER TO MAKE A DETERMINATION AS TO THE PENALTY, ALL TWELVE JURORS MUST AGREE.
ANY VERDICT THAT YOU REACH MUST BE DATED AND SIGNED BY YOUR FOREPERSON ON A FORM THAT WILL BE PROVIDED, AND THEN YOU SHALL RETURN WITH IT TO THIS COURTROOM.
BEFORE I HAVE MY BAILIFF SWORN IN TO TAKE CHARGE OF YOU FOLKS, I NEED TO TALK ABOUT TWO THINGS. NUMBER ONE ARE THE VERDICT FORMS. THERE ARE TWO POTENTIAL CHOICES. EACH ONE IS REPRESENTED IN THE FORM OF A VERDICT. AS SOON AS YOU’VE REACHED A UNANIMOUS DECISION AS TO WHAT THE APPROPRIATE PENALTY SHOULD BE, YOUR FOREPERSON CAN DATE AND SIGN IT AND FILL OUT THE APPROPRIATE FORM. LEAVE THE OTHER FORM OBVIOUSLY BLANK.
ANOTHER REMINDER THAT WHEN YOU SIGN YOUR NAME, DON’T SIGN YOUR NAME, SIGN YOUR SEAT NUMBER.
THE OTHER THING IS THIS: FRIDAYS. WE’VE HAD SOME FRIDAYS WORKING, WE’VE HAD SOME FRIDAYS NOT WORKING. DURING YOUR DELIBERATIONS AT THE LAST PHASE OF THE TRIAL YOU ELECTED TO WORK IN THE FRIDAY MORNINGS BUT NOT THE AFTERNOONS. IN ORDER FOR PLANNING PURPOSES, ONE OF THE THINGS WE’RE GOING TO NEED THE PANEL AS A WHOLE TO LET US KNOW IS WHETHER OR NOT YOU WANT TO DELIBERATE ON FRIDAYS AND, IF SO, HOW LONG. AND THAT IS STRICTLY FOR MANAGEMENT OF THE TRIAL. SO KEEP THAT IN MIND. THAT IS ONE OF THE THINGS THAT YOU’RE GOING TO NEED TO DISCUSS AND LET US KNOW ABOUT AS QUICKLY AS POSSIBLE.
ALL RIGHT. PLEASE SWEAR THE BAILIFF.
(THE BAILIFF WAS DULY SWORN.)
THE COURT: ALL RIGHT. LADIES AND GENTLEMEN IN THE FIRST TWELVE NUMBERED SEATS, GATHER UP ALL YOUR PERSONAL BELONGINGS, YOUR NOTEBOOKS AND SO FORTH. YOU’RE HEADED BACK TO THE SAME JURY DELIBERATION ROOM.
(THE JURY RETIRED FOR DELIBERATION AT 2:14 O’CLOCK,
P.M.)
(THE FOLLOWING OCCURRED OUT OF THE PRESENCE OF THE
JURY:
THE COURT: OKAY. AS FOR OUR SIX ALTERNATE JURORS, YOU ARE STILL BOUND BY THE ADMONITION THAT YOU ARE NOT TO CONVERSE AMONG YOURSELVES OR WITH ANYONE ELSE ON ANY SUBJECT CONNECTED WITH THE TRIAL OR TO FORM OR EXPRESS ANY OPINION ON IT UNTIL THE CASE IS SUBMITTED TO YOU, WHICH MEANS UNTIL SUCH TIME AS YOU ARE SUBSTITUTED IN FOR ONE OF THE TWELVE JURORS NOW DELIBERATING ON THE CASE. THIS ALSO MEANS THAT YOU ARE NOT TO DECIDE HOW YOU WOULD VOTE IF YOU WERE DELIBERATING WITH THE OTHER JURORS.
NOW, LADIES AND GENTLEMAN, AS ALTERNATE JURORS IN THIS PHASE OF THE TRIAL, WE ARE IN A LITTLE BIT DIFFERENT CIRCUMSTANCE THAN WE WERE IN THE GUILT PHASE. OBVIOUSLY WE NEEDED TO KEEP IN TOUCH WITH YOU IN THE EVENT THAT THERE WAS A PENALTY PHASE. AND OBVIOUSLY THERE WAS. AND SO WE HAD TO CALL YOU BACK FOR ACTIVE DUTY.
THOSE OF YOU THAT ELECT TO BE ON TELEPHONE STANDBY, I NEED TO KNOW WHETHER YOU WANT TO BE PRESENT AT THE TIME THIS PANEL MAKES A DECISION, IF THEY ARE ABLE TO DO SO. THERE IS AN ENORMOUS AMOUNT OF INTEREST IN THIS CASE. THERE IS A GREAT DEMAND BY THE MEDIA AND REPRESENTATIVES OF THE MEDIA TO CHAT WITH YOU IF YOU’RE SO INCLINED. I’M GOING TO BE GOING OVER WHAT THE OPTIONS ARE FOR THE PANEL AS A WHOLE IF AND WHEN WE GET A VERDICT. AND I CAN DO THE SAME FOR YOU. SO IT’S A MATTER OF YOUR PERSONAL PREFERENCE.
THE WAY THIS IS GOING TO WORK IS VERY SIMPLE. YOU HAVE THE SAME CHOICES YOU HAD DURING THE GUILT PHASE. CHOICE NUMBER ONE IS TO COME DOWN EVERY DAY AND WAIT IT OUT IN THE JURY ASSEMBLY ROOM OR THE ANNEX AS WE CALL IT WHERE THERE IS NO TELEVISION. THAT’S CHOICE NUMBER ONE.
THEN THERE’S CHOICE NUMBER TWO, WHICH ULTIMATELY ALL OF YOU ENDED UP SELECTING, WHICH IS TO BE ON TELEPHONE STANDBY. IF YOU’RE PLACED ON TELEPHONE STANDBY, MY CLERK WILL KEEP YOU FULLY INFORMED WHEN AND IF WE GET A VERDICT. SHE’LL ALSO CALL YOU AND LET YOU KNOW WHAT THAT VERDICT WAS, AND SHE WILL CALL YOU AND LET YOU KNOW THAT YOU’RE NO LONGER OBLIGATED FOR JURY SERVICE. HOWEVER, SHE’S ALSO GOING TO ASK YOU WHEN SHE COMMUNICATES WITH YOU WHETHER YOU WANT TO BE PERSONALLY PRESENT.
BECAUSE OF THE FACT THAT SOME OF YOU ARE RIGHT IN THE RANGE OF A HALF-HOUR, FORTY-FIVE MINUTES FROM HERE, I NEED TO KNOW THAT NOW. SO THE WAY WE’RE GOING TO DO THIS IS VERY SIMPLE. I’M GOING TO ASK EACH OF YOU WHETHER YOU WANT TO BE PLACED ON TELEPHONE STANDBY. IF YOU INDICATE TO ME YOU DO, I’M GOING TO HAVE YOU FILL OUT A FORM ONCE AGAIN, A BLANK PIECE OF PAPER WITH YOUR SEAT NUMBER AND PHONE NUMBER AND PRIVATELY I WANT YOU TO PUT ON THAT FORM SO IT’S NOT A MATTER OF PUBLIC RECORD WHETHER YOU WANT TO BE NOTIFIED AND BE HERE IF THERE IS A VERDICT.
SO WE GET THIS STRAIGHT, WHEN I GIVE YOU YOUR NUMBER, YOU TELL ME WHETHER YOU WANT TO BE ON TELEPHONE STANDBY. IF YOU SAY YES, I’M GOING TO HAVE YOU FILL OUT A BLANK PIECE OF PAPER WITH YOUR SEAT NUMBER ON IT, THE PHONE NUMBER, PAGER, WHERE YOU’RE AVAILABLE. AND ON THAT FORM PLEASE WRITE IF YOU WANT TO BE PERSONALLY PRESENT WHEN THE VERDICT IS READ. JUST INDICATE THAT ON THE FORM. MY CLERK WILL TAKE POSSESSION OF ALL OF THOSE SO THAT THOSE OF YOU THAT ELECT NOT TO COME BACK FOR THE VERDICT SHOULD NOT BE BOTHERED, SO FORTH. THOSE OF YOU THAT ELECT TO COME BACK I WILL GO OVER ALL THE CHOICES ALL THE JURORS HAVE.
SO, JUROR THIRTEEN, AT THIS POINT IN TIME WHAT IS YOUR PREFERENCE?
JUROR NUMBER 13: NO. I’LL STAY.
THE COURT: YOU’RE GOING TO BASICALLY WAIT IT OUT?
JUROR NUMBER 13: (THE JUROR NODDED HER HEAD.)
THE COURT: ALL RIGHT.
JUROR FOURTEEN.
JUROR NUMBER 14: YES, I’LL STAY.
THE COURT: YOU’LL STAY.
JUROR FIFTEEN.
JUROR NUMBER 15: THE SAME.
THE COURT: STAY?
JUROR NUMBER 15: YES.
THE COURT: SIXTEEN.
JUROR NUMBER 16: STAY.
THE COURT: SEVENTEEN.
JUROR NUMBER 17: STAY.
THE COURT: EIGHTEEN.
JUROR NUMBER 18: TELEPHONE STANDBY.
THE COURT: TELEPHONE STANDBY.
JUROR NUMBER 17: TELEPHONE STANDBY ALSO. I’M SORRY.
THE COURT: JUST SO I’VE GOT THIS STRAIGHT, THE FOUR OF YOU AT THIS END, YOU WILL WANT TO BE PERSONALLY PRESENT, JUST WAIT IT OUT. CORRECT?
JUROR NUMBER 13: YES.
THE COURT: JUROR SEVENTEEN AND JUROR EIGHTEEN, PLEASE TAKE A BLANK PIECE OF NOTEPAPER FROM YOUR NOTEBOOK, PUT YOUR SEAT NUMBER DOWN, PUT THE TELEPHONE OR PAGER NUMBER WHERE YOU CAN BE REACHED DURING THE BUSINESS DAY, AND INDICATE ON YOUR BLANK PIECE OF PAPER WHETHER YOU WANT TO BE PRESENT OR NOT.
ALL RIGHT. THE FOUR OF YOU ARE WELCOME TO RETIRE TO THE JURY ASSEMBLY ROOM OR THE ANNEX AT THIS TIME. YOU CAN LEAVE YOUR NOTEBOOKS ON YOUR CHAIRS. AS I DID WITH THE GUILT PHASE, I’M GOING TO BE RELEASING THE PANEL AT 4:00 O’CLOCK, SO IF YOU DON’T HEAR ANYTHING BY 4:00 P.M., CONSIDER YOURSELVES FREE TO LEAVE FOR THE EVENING, WITH THE ADMONITION THAT I’VE JUST GIVEN.
IN ADDITION TO THAT, MIKE, WHERE WOULD YOU LIKE TO MEET THEM, AT THE NORMAL ASSEMBLY POINT AT 9:00?
THE BAILIFF: EXACTLY.
THE COURT: SO TOMORROW MORNING AT 9:00 O’CLOCK, ASSUMING THERE’S NO VERDICT TODAY, BE AT THE JURY ASSEMBLY POINT SO THAT MIKE CAN COUNT EACH OF YOUR NOSES BEFORE YOU GO BACK. AND IF AT ANY TIME YOU CHANGE YOUR MIND, SIMPLY LET MIKE KNOW THAT, FILL OUT A PIECE OF PAPER JUST LIKE THESE FOLKS ARE DOING, SO IF YOU DO CHANGE YOUR MIND, WE CAN GO ALONG WITH THAT.
YES, THIRTEEN.
JUROR NUMBER 13: I CAR-POOLED WITH SOMEONE TODAY.
THE COURT: OKAY.
JUROR NUMBER 13: WHERE CAN I MEET THEM?
THE COURT: WELL, I DON’T KNOW. YOU WILL HAVE TO WORK THAT OUT WITH THEM.
JUROR NUMBER 13: I CAN STAY TODAY. SO I CAN TALK TO MIKE.
THE COURT: YES. YOU JUST TALK TO MIKE ABOUT THAT.
SO THE FOUR OF YOU AT THIS TIME CAN RETIRE TO THE JURY ASSEMBLY ANNEX AREA, AND WE WILL BE IN TOUCH WITH YOU.
AND, MIKE, DO YOU HAVE THE NUMBERS FROM SEVENTEEN AND EIGHTEEN?
THE BAILIFF: YES, I DO.
THE COURT: OKAY.
AND IF I DON’T HAVE THE OPPORTUNITY TO SEE YOU FOLKS AGAIN, I WANT TO THANK YOU VERY MUCH ON BEHALF OF YOUR FELLOW CITIZENS FOR YOUR EFFORTS AND JUST KNOW THAT I’M GOING TO BE SAYING MORE TO THE PANEL, BUT THANK YOU IN CASE WE DON’T SEE YOU AGAIN. ALL RIGHT.
[THE ALTERNATE JURORS LEFT THE COURTROOM AT THIS
POINT.]
THE COURT: OKAY. THE RECORD SHOULD REFLECT THAT OUR SIX ALTERNATE JURORS HAVE LEFT THE COURTROOM.
ONCE AGAIN CAN I HAVE A STIPULATION THAT IN THE EVENT NO VERDICT IS REACHED THAT THE JURY MAY BE DISCHARGED WITHOUT MR. WESTERFIELD AND COUNSEL BEING PRESENT?
MR. FELDMAN: YES, YOUR HONOR. SO STIPULATED.
MR. DUSEK: YES.
THE COURT: CAN I HAVE AN AGREEMENT ONCE AGAIN, NOT A STIPULATION, BUT AN AGREEMENT, THAT IF WE GET A NOTE, THE COURT WILL PROPOUND A RESPONSE TO THE NOTE, PEGGY WILL CALL YOU, READ YOU THE NOTE, THE PROPOSED RESPONSE; IF IT’S AGREEABLE, YOU CAN CONSENT OVER THE PHONE WITHOUT COMING DOWN?
MR. DUSEK: YES.
MR. FELDMAN: YES.
THE COURT: ALSO, YOUR POSITION, MR. FELDMAN, ON RE-READS IN THE GUILT PHASE WAS THAT IF THERE WAS A REQUEST WE NOTIFY YOU WHICH WITNESSES WERE DESIRED, BUT THAT MR. WESTERFIELD WOULD WAIVE HIS PRESENCE FOR PURPOSES OF THE READBACK. IS THAT STILL HIS POSITION?
MR. FELDMAN: YES, YOUR HONOR.
THE COURT: ALL RIGHT. WE WILL NOTE THAT FOR THE RECORD.
AND WE’LL BE IN RECESS UNTIL WE HEAR FROM THE PANEL.
MR. CLARKE: JUST ONE ITEM, YOUR HONOR. MR. ARMSTRONG AT A TIME CONVENIENT TO THE COURT AND COUNSEL WOULD LIKE TO BE HEARD BRIEFLY ON THAT ONE MOTION THAT INVOLVED THE DECLARATION.
THE COURT: ALL RIGHT.
HAVE WE GOT THE DECLARATION? I HAVE NOT SEEN IT.
MR. FELDMAN: NOT YET.
MR. CLARKE: UNSIGNED ONLY I BELIEVE.
MR. FELDMAN: YOUR HONOR, IN DISCOVERY WE PROVIDED. WE ARE GETTING THE SIGNATURE. WE DON’T HAVE IT YET.
THE COURT: I WILL PROVIDE THE OPPORTUNITY AS SOON AS I HAVE THE COMPLETE PLEADING.
ALL RIGHT. WE WILL BE IN RECESS UNTIL WE HEAR FROM THE PANEL.
(END OF PROCEEDINGS OUT OF THE PRESENCE OF THE JURY.)
(RECESS, 2:22 O’CLOCK, P.M., TO 3:35 O’CLOCK, P.M.)
(THE FOLLOWING OCCURRED IN THE JURY DELIBERATION
ROOM:
THE COURT: ALL RIGHT. GOOD AFTERNOON, LADIES AND GENTLEMEN. IT’S TIME FOR THE DAILY DOSE OF THE ADMONITION.
REMEMBER THE ADMONITION OF THE COURT NOT TO DISCUSS ANY OF THE EVIDENCE OR TESTIMONY AMONG YOURSELVES OR WITH OTHERS NOR FORM OR EXPRESS ANY OPINIONS ‘TIL YOU’RE ALL BACK IN HERE TOMORROW MORNING. 9:00 O’CLOCK AT THE NORMAL MEETING PLACE.
HAVE A PLEASANT EVENING. MAYBE THE PADS. CAN WIN A GAME BETWEEN NOW AND THEN.
SEE YOU ALL TOMORROW.
(RECESS, 3:38 O’CLOCK, P.M., TO 9:00 O’CLOCK, A.M.,
THURSDAY, SEPTEMBER 5, 2002.)